Whilst the list of rights recognized as easements is not a closed one, are the boundaries which the courts have imposed to limit the expansion of this list appropriate and consistent?

A good place to begin would be to identify what an easement is. This may involve an explanation that easements can be both positive (allowing a person to do something on the land of another which falls short of exclusive possession) and negative (preventing a landowner from doing something on his own land) in nature.

Identify where the proposition that the list of easements is not a closed one has come from. Link to the requirements under Re Ellenborough Park (1956) and specifically, that a right claimed as an easement must be within the general nature of rights traditionally recognized as easements. Explain the authority of Dyce v Lady James Hay (1852); give examples of when new easements have been recognized (for example, Miller v Emcer Products (1956)). Consider the impact of the decision of Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and another (2015).

Consider the boundaries imposed to prevent the expansion of the list of easements. This may involve focusing upon the rule that there should be no new negative easements. Is this a rule that can be consistently applied? Do all easements have a negative element to them? Is the application of this influenced by issues of public policy, leading to inconsistencies in its application? Is the influence of public policy appropriate when imposing the boundaries? Key cases here include Phipps v Pears (1965); Hunter v Canary Wharf Ltd (1997).

Reflect upon the other requirements of capability under Re Ellenborough Park (1956). How do these requirements limit the boundaries? Are they appropriate? Does flexibility in their interpretation and application allow for inconsistencies? Focus, for example, on the issue of exclusive possession and how the courts have interpreted what amounts to the servient land differently to achieve the desired results (compare and contrast Wright v Macadam (1949) and Batchelor v Marlow (2003)). Consider consistency in the approach adopted by the courts as to what amounts to exclusive possession: Batchelor v Marlow (2003) and Moncrieff v Jamieson(2007) and Kettel & Ors v Bloomfold (2012).

Analysis of the Law Commission Report No. 327 8 June 2011 may be appropriate.

Conclude.