It would be prudent to begin by giving somewhat of an explanation as to

what is meant by an easement. An easement is essentially a right over

someone elses land.1 Examples of the same include a right of way or a right
to light and air.

There are a number of pre-requisites that must be fulfilled before a particular

right qualifies as an easement, and these were considered in detail by the
Court of Appeal (CA) in the leading case of Re Ellenborough Park.2 This
case involved the right of surrounding landowners to enjoy the use of the
aforementioned park for, inter alia, recreational purposes, with the park
having been requisitioned by the government during World War 2. It was held
that the said right amounted to an easement at law.

In reaching this decision, the CA detailed the nature of an easement. Firstly,

there must be two distinct pieces of land located reasonably near one
another, one being known as the dominant tenement; the other as the
servient tenement. The easement must benefit the dominant tenement Thus,
a right of way granted by X who owns land in Kuantan to Y, who owns land in
Kuala Lumpur, may be a license but NOT an easement. However,
Ellenborough provided that the lands do not necessarily have to be
1 M P Thompson, Modern Land Law (5th, Oxford University Press, Oxford 2012) 538
2 Re Ellenborough Park [1956] 1 Ch. 131 (CA)

physically adjoining one another. To my mind, the current rule is a good one,
as it is not practically feasible to monitor easements involving lands that are
hundreds of miles apart.
However, Sturley, in his 1980 article, has argued that the need for a
dominant tenement is unjustifiable by the common law, and is in favour of
easements in gross, whereby rights over the servient tenement is exercised
by a person not owning any land of his or her own. He recommends that,
such an easement be registered as a charge over the servient land, in
accordance with statute.3 This would, in my opinion, be unfairly burdensome
upon the servient tenement, and I am therefore not in support of this point of
view. Furthermore, the Law Commission in their 2008 report stated that this
manner of easement would amount to a clog of title, diminishing the
market value of the servient tenement.4

Going back to the fact that the easement must benefit the dominant
tenement, this means that it must accommodate the land itself, and not
merely confer some personal advantage to the landowner. For instance, in
Bailey v Stephens, the courts held that the exclusive logging rights on a
particular piece of land does not benefit the dominant tenement at all, and
3 M F Sturley, 'Easements in Gross' [1980] 557, 568
4 'EASEMENTS, COVENANTS AND PROFITS PRENDRE A Consultation Paper'
(http://lawcommission.justice.gov.uk/ 2008)
<http://lawcommission.justice.gov.uk/docs/cp186_Easements_Covenants_and_Profit
s_a_Prendre_Consultation.pdf> accessed 2 May 15

therefore could not amount to an easement.5 The sole exception to this

general rule would be where an alleged easement benefits a business
venture conducted on the dominant land, despite not being advantageous to
the land itself. A fine example of this comes from the case of P & S Platt
Ltd v Crouch, where the rights to berth boats on an island near the
dominant land was deemed an easement, owing to the fact that the land was
being used as a hotel.6 In my opinion, this exception does somewhat confuse
the issue: How do we distinguish between a business benefit and a
personal advantage to the landowner? The case of Hill v Tupper highlights
this point. The plaintiff had leased some land on the banks of a canal, and
was also granted the exclusive right to put pleasure boats on the canal.
When the defendant, started to hire out boats on the canal as well, Hill
argued that this was a violation of his easement. This was rejected, as the
courts held that Hills right was only a license of sorts, seeing as it only
benefited his business without aiding the ordinary use of the land. 7 Thus,
there is a distinct lack of clarity in this regard.

Besides this, the two tenements must be owned & occupied by different
individuals. It is not possible to have an easement over two adjoining lands

5 Bailey v Stephens(or Stevens) [1862] 12 CBNS 91 (CCP)

6 P & S Platt Ltd v Crouch & Anor [2003] EWCA Civ. 1110
7 Hill v Tupper [1863] 2 H & C 121 (Exch Ct)

that you own, as was held in the case of Kilgour v Gaddes, where two
tenants of the same landlord had a dispute over the existence of a
prescriptive right of way.8 While this may seem perfectly sensible, an issue
has arisen in recent times with regards to the development of housing
estates. The developer will eventually need to grant easements over the
various housing plots but, under the current law, cannot do so while he still
owns all the plots of land. To resolve this issue, the Law Commission in its
2008 Consultation paper recommended that, so long as the the individual
plots of land are registered with separate titles, the developer should be
allowed to create easements over the land. 9 I wholeheartedly agree with this
proposal, as it is highly necessary when we take into account pressing
concerns such as overpopulation and the growing need for housing.

One final, crucial requirement for recognition as an easement is that the right
in question must be capable of being the subject-matter of a grant. This
phrase involves a number of sub-conditions. Firstly, the extent of the right
claimed must be fairly certain. In Ellenborough, this requirement for clarity
was deemed necessary to prevent capricious, personal benefits from
becoming easements. Thus, in William Aldreds Case, the right to a good
8 Kilgour v Gaddes [1904] 1 KB 457 (CA)
9 'EASEMENTS, COVENANTS AND PROFITS PRENDRE A Consultation Paper'
(http://lawcommission.justice.gov.uk/ 2008)
<http://lawcommission.justice.gov.uk/docs/cp186_Easements_Covenants_and_Profit
s_a_Prendre_Consultation.pdf> accessed 2 May 15

view did not qualify.10 Then, there must be both a capable grantor & grantee.
An illustration of this rule comes from the case of Copeland v Greenhalf,
where the plaintiff wheelwrights sought to claim a prescriptive easement to
park vehicles for repair on a substantial portion of a strip of land used by the
servient landowners to access their orchard. This was denied by the courts
as it would amount to a claim for joint possession, rather than a right over
anothers land.11

Next, the easement must not be overly burdensome to the servient land.
This means that negative easements, which limit the servient landowners
enjoyment of his land, will not generally be recognized. For example, in
Phipps v Pears, Lord Denning MR held that a right to protection from the
elements could not be granted if it would restrict a persons right to demolish
his own house.12 This makes sense, as a balance has to be struck between
recognizing new easements where necessary, while not infringing upon the
servient landowners right to peaceful enjoyment of his or her property, as
enshrined in Article 1 of the First Protocol of the Human Rights Act 1998.13

10 Aldreds Case [1610] 77 ER 816

11 Copeland v Greenhalf [1952] Ch 488 (HC)
12 Phipps v Pears [1965] 1 QB 76 (CA)
13 Human Rights Act 1998

Apart from this, the easement cannot be one that conveys rights that are too
extensive. It would be best to illustrate this point by considering the on-going
debate as to the existence of a car parking easement. Prior to the House of
Lords decision in Moncrieff v Jamieson, there were conflicting case laws. 14
In Batchelor v Marlow, it was held that a right to park cars on a strip of
land for 10 hours a day on weekdays was excessively burdensome. 15
However, in Hair v Gillman, an easement to park a car on land big enough
for 4 vehicles was recognized.16 The issue I have with this particular
requirement is the high degree of subjectivity that is involved in determining
whether the person claiming an easement is pushing his luck, so to speak.
The decision is entirely dependent on judicial discretion, which may, in some
instances, result in an unfair end-result. For example, in Moncrieffs case, it
was held that a supplementary right to park cars could be implied when
reasonably necessary, a term of considerable ambiguity.

Turning our attention to the various methods by which easements are

created, we must first note that there is a difference between when the
vendor of the land retains certain rights for himself (reservation), and when
he confers rights over the land he still owns to the new owner (grant). Each

14 Moncrieff v Jamieson [2007] UKHL 42 (HL)

15 Batchelor v Marlow [2003] 4 All ER 78 (CA)
16 Hair v Gillman [2000] 80 P&CR 108 (HC)

of these can be either express or implied, but our focus here is on methods
of implied creation.

As regards reservation, the law is rather unwilling to imply rights in favour of

the vendor. Thus, one such situation where this occurs is through necessity.
For instance, if a person sells part of his land without making express
arrangements for an access route to the land he retains, courts may imply a
right of way.17 However, there must be an absolute necessity, as highlighted
by the case of Titchmarsh v Royston Water Co., where such an easement
was not implied, owing to the existence of a highly impractical (though still
feasible) pathway located 20 feet below the land itself. 18 In addition to this,
the particular necessity must exist at the very time when the grant is made.
To my mind, this current position leaves much to be desired. For instance, it
may be very costly and burdensome for landowners to manage their land
without an implied easement, despite there not being an absolute necessity.
Furthermore, changing surrounding circumstances may give rise to a
necessity that was not there at the time of the grant. Conflicting case law is
another issue, as in the case of Sweet v Sommer, unlike Titchmarsh, a right

17 B McFarlane, N Hopkins & S Nield, Land Law: Texts, Cases and Materials (2nd,
Oxford University Press, Oxford 2012) 929
18 Titchmarsh v Royston Water Co [1900] 81 LT 673

of vehicular access was implied, despite the existence of a walkway. 19 The

same principles for necessity apply in the case of a grant.

Next, we look at implied intention. The courts may imply reservation of an

easement if it is deemed to be the common intention of the parties. The
most common example of this comes from easements of support. In
Peckham v Ellison, which involved a terrace of four council houses, a
reservation of a right of way by the council for the benefit of the plaintiffs
(house no.15) was implied by mutual intention, even though no such
reservation had been expressly made when house no.16 was conveyed to
the defendants.20 With regards to implied grants by common intention, the
two scenarios in which such an easement would be conferred by courts were
laid out by Lord Parker in Pwllbach Colliery Co Ltd v Woodman.21 Firstly,
where the grant is essential in enabling the dominant landowner to carry out
the purpose for which the land was sold or leased. Secondly, where the
easement is vital for the enjoyment of another right that was expressly
granted. An issue with this method is, again, the considerable judicial power
and subjectivity in determining what the parties would have intended, had

19 Sweet & Anor v Summer & Anor [2004] EWHC 1504 (Ch)
20 Peckham v Ellison [1998] 3 HLR 1031 (CA)
21 Pwllbach Colliery Co Ltd v Woodman [1915] AC 624 (HL)

they directed their mind to existing circumstances at the time of

conveyance.

Another way by which an easement can be impliedly granted is under the

rule in Wheeldon v Burrows, which involved the defendant owning two
plots of land, with the existence of a quasi-easement of light. Having sold
the quasi-dominant land to the plaintiff, the question was whether this
quasi-easement

had

been

converted

to

an

actual

easement

by

implication.22 In this case, Thesinger LJ laid down the pre-requisites under the
rule. First, there must have been a quasi- easement pre-sale. Next, the right
must be continuous and apparent, that is one which is not transitory and
easily visible upon inspection. Lastly, the easement must be necessary for
the enjoyment of the now-dominant tenement. This final requirement is
complicated, as necessary has been held by subsequent case law to not
mean absolutely essential, but be more than just merely accommodating
the land - a terribly uncertain definition. Furthermore, the rule does not
currently

apply

to

the

reservation

of

rights.

The

Law

Commission

recommends otherwise, seeing as the purpose of the rule is to imply rights in

situations where express easements are often overlooked, a point I concur
with.

22 Wheeldon v Burrows (1879) LR 12 Ch D 31 (CA)

Last, but not least, section 62(1) of the Law of Property Act 192523 provides,
inter alia, for the implied grant of easements. 24 The conditions attached to
this include the existence of a quasi-easement at the time the nowdominant land is sold, and the fact that the easement to be implied will act
over the now-servient land retained by the grantor. Limitation include the
need for a competent grantor, the nature of the right and the absence of any
express contrary intention in the conveyance. 25 Consider this example: A
woman allows the tenant (T) of her flat to park his car on land opposite the
house (which she also owns). If the house is then sold to T, and the
conveyance does not mention parking rights or exclude the operation of
section 62, T will have a legal easement to park his car as per normal.

Criticisms of this section include the fact that personal advantages, such as
licenses can become property rights as a result of its operation. Besides this,
the fact the operation of this section can only be excluded expressly,
situations may arise where the parties fall into a trap, having not
23 Law of Property Act 1925 s 62(1)
24 A conveyance of land shall be deemed to include and shall by virtue of this Act
operate to convey, with the land, all buildings, erections, fixtures, commons,
hedges, ditches, fences, ways, waters, water-courses, liberties, privileges,
easements, rights, and advantages whatsoever, appertaining or reputed to
appertain to the land, or any part thereof, or, at the time of conveyance, demised,
occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant
to the land or any part thereof.
25 M P Thompson, Modern Land Law (5th, Oxford University Press, Oxford 2012)
556-558

considered this factor, and thus an easement is implied, contrary to their

actual intentions. As noted by the Law Commission in 2008, there is
uncertainty as to whether the 2 tenements must be in separate ownership or
occupation before the conveyance - the precise wording of the provision
seems to suggest this is so.

With regards to reforming the procedures for implied creation of easements, I

would suggest, as did the Law Commission, that section 62 of the LPA 1925
be repealed, owing to its many shortcomings, as mentioned above. Apart
from that, in consideration of several authorities, the Law Commission in
2011 recommended that easements of necessity should only last as long as
the necessity remains, a proposal I deem to be fair. 26 As for common
intention, I believe that, in adducing such intention, a holistic approach
should be adopted, in that all communications & agreements between the
parties before the conveyance of land should be taken into account, although
this contradicts Lord Hoffmans approach in the case of Investors
Compensation Scheme Ltd v West Bromwich Building Society.27

26 'MAKING LAND WORK: EASEMENTS, COVENANTS AND PROFITS PRENDRE'

(lawcommission.justice.gov.uk 2011)
<http://lawcommission.justice.gov.uk/docs/lc327_easements_report.pdf> accessed
3 March 15
27 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1
WLR 896, 912 (HL)

One interesting proposal by the Law Commission in 2011 involved having

one single test as the way to create implied easements, replacing all
currently existing methods. This test would encompass the current and
potential future uses of the dominant land, the burden on the servient land,
alternative methods for achieving what the easement in question is designed
to do and the physical surroundings of the land itself. 28 This, to me, seems
like a fine way of simplifying this area of the law, though further study and
fine-tuning would undoubtedly be needed before its implementation.

In conclusion, it is evident that the law regarding the creation of easements,

as well as the qualities that certain rights must possess in order to be
recognized as such, is, on the whole, rather detailed and clear. Nevertheless,
as discussed above, improvements can and ought to be made to this highly
important area of the law.

[2457 words]

28 'MAKING LAND WORK: EASEMENTS, COVENANTS AND PROFITS PRENDRE'

(lawcommission.justice.gov.uk 2011)
<http://lawcommission.justice.gov.uk/docs/lc327_easements_report.pdf> accessed 3 March
15

BIBLIOGRAPHY

Table of Cases:-

Investors Compensation Scheme Ltd v West Bromwich Building Society

Wheeldon v Burrows
Pwllbach Colliery Co Ltd v Woodman
Peckham v Ellison
Sweet v Sommer
Titchmarsh v Royston Water Co.
Hair v Gillman
Batchelor v Marlow
Moncrieff v Jamieson
Phipps v Pears
Copeland v Greenhalf
William Aldreds Case
Kilgour v Gaddes
Hill v Tupper
P & S Platt Ltd v Crouch
Bailey v Stephens
Re Ellenborough Park

Table of Legislation:-

Human Rights Act 1998

Law of Property Act 1925

Secondary Sources:-

 Law Commision Report - Making Land Work: Easements, Covenants &

Profits Prendre (2011)
Law Commision Consultation Paper: Easements, Covenants & Profits
Prendre (2008)

M P Thompson, Modern Land Law (5th, Oxford University Press, Oxford 2012)
B McFarlane, N Hopkins & S Nield, Land Law: Texts, Cases and Materials (2nd,
Oxford University Press, Oxford 2012)
M F Sturley, 'Easements in Gross' [1980]