The Court of Appeal has recently considered whether the right to use a swimming pool, tennis court, golf course and the like can exist as easements despite the guidance in Re Ellenborough Park  Ch 131 that an easement cannot be ‘purely recreational’. This rule has always been somewhat difficult to interpret in light of the decision in Re Elleborough Park itself, where it was concluded that access to a garden could constitute an easement. It is difficult to see how this itself was not a ‘recreational’ easement. Nevertheless, a number of cases since Ellenborough Park have confirmed that use of a garden can constitute a valid easement, e.g. Mulvaney v Jackson  1 WLR 360. Furthermore, as the Chancellor reasoned in the opening paragraph of his judgment, “[s]ince then , the culture and expectations of the population of England & Wales have radically changed. This case has to be considered in the light of those changes”. 
The facts were as follows. In a conveyance completed in 1981, the purchasers of legal title to Elham House were given the right to use certain recreational facilities in and around Broome Park Mansion House, all of which made up the wider “Broome Park Estate”. Elham House was one of a number of properties within the Broome Parke Estate. Elham House itself was divided into flats and there are twenty-four villas built in its grounds. These villas and flats were let as timeshares. On the date of the original conveyance, the recreational facilities which existed at that time were: formal Italianate gardens; an outdoor swimming pool (now replaced with an indoor pool); an 18-hole golf course, three squash courts, two outdoor hard-surfaced tennis courts, a putting green and a croquet lawn, a reception, a billiard room and a TV room on the ground floor of the Mansion House, and a restaurant, bar, gym, sunbed and sauna area.
In resolving the question as to whether the use of such facilities could amount to an easement, the Court of Appeal began by analyzing the decision in Ellenborough Park which is said to outline the fundamental principles as to what kinds of rights are capable of constituting an easement. The ‘no recreational easements’ rule in Ellenborough Park was derived from the obiter comments of Martin B in Mounsey v Ismay (1865) 3 H&C 486. The Court then turned to the 1981 grant itself before looking at the individual easements in turn.
First, the Court is reasons that, “the categories of easements are not closed” . Rather, in line with Dyce v Hay, “[t]he categories of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind”, (1852) 1 Macq 305, 312-3. Thus, even though some of the rights considered in Regency Villas have not previously been held to constitute easements, that does not mean that they cannot do so. Furthermore, the ‘prohibition’ on recreational easements in Elleborough Park is not a clear-cut rule. Therefore, the court examined the place of ‘recreational’ easements in modern law:
On the question of the possibility of recreational easements, therefore, the Court concluded:
This did not however dispose of the question at hand, for there are further requirements of a valid easement which might continue to pose problems in the instant case. First, “the rights must not be too wide or vague” ; second, “an easement cannot impose a positive obligation on the owner of the servient tenement” ; third, “an easement is unlikely to be valid if it requires the dominant owner to exercise a right to joint occupation or deprives the servient owner of proprietorship or legal possession” . Finally, “an easement cannot exist over chattels”  (this posed a problem for the gym equipment).
The court then examined the different easements:
1. Italianate gardens. The use of these gardens could clearly be an easement (Ellenborough Park).
2. Outdoor hard-surfaced tennis courts. The fact that the courts would be used to play a game did not in itself mean that there was no easement here.
Thus, there was no reason that this could not be a valid easement.
3. Squash Courts. The same arguments as applied to the tennis courts applied to the squash courts. It made no difference, in the court’s view, that the squash courts were inside rather than outside: “there is no need for any shared or actual possession or occupation for the claimants to be allowed to use the squash courts for games of squash” .
4. The putting green and croquet lawn. For the same reasons relating to the squash and tennis courts there could be valid easements here. An important factor in relation to these facilities, as with the squash and tennis courts, was that the dominant owners would easily be able to maintain the facilities themselves and provide the additional items – such as croquet hoops and tennis nets.
5. The Outdoor swimming pool. The Court highlights that, as with tennis courts, the use of a swimming pool is of obvious utility and benefit to the dominant tenement, notwithstanding the obiter comments of Lord Scott in Moncrieff v Jamieson  1 WLR 2620. Thus, when the servient owners filled in the outdoor swimming pool in 2000, their actions were in breach of easement.
6. 18-hole golf course. The golf course, according to the court, should be treated in a similar way to the pool in that, unlike a tennis court for example, a modern golf course requires a very high degree of maintenance to keep it in a playable condition. However, the maintenance could be carried out by the dominant owner without his taking possession of the servient land. Therefore: “there is no principle that prevents the grant of a right to use a piece of land formed into a working golf course from being valid. We do not think it would be necessary for the claimants to take actual or even shared possession of the land upon which the course was laid out in order to mow it and maintain it in playable condition” .
7. The reception room, billiard room and TV room. A reception room cannot constitute a sporting or recreational facility. Furthermore, the use of such facilities cannot be explained by reference to the modern attitude regarding exercise. Therefore, there could be no easement to use these facilities:
“The tennis court and golf course are both proper uses of the servient land. The grant of the right to use recreational facilities on the ground floor of the Mansion House was really no more than a personal right to use chattels and services provided by the defendants”. 
8. Restaurant, bar, gym etc. The same arguments as applied to the TV room apply here.
9. The new indoor swimming pool.
There could be no easement here as no easement was granted in relation to the new pool. The swimming pool easement related to the outdoor pool.
There are three areas of note to emerge from this judgment.
First, relating to the question of ‘recreational easements’, it may fairly be said that the language of ‘recreational or not’ will no longer be helpful going forward (if it ever was) in determining whether a right can be an easement or not. Rather, the test should be whether the right can fairly be seen as providing a ‘utility and benefit’ to the dominant land, it being irrelevant whether this utility or benefit is a recreational one. Looking at cases like Ellenborough Park and Mulvaney, it may fairly be said that this is not really a change in the law, but it is a change in the manner of its expression. In short, it ought now to be recognized that it is possible to have recreational easements, but only where they provide a utility to the dominant land.
Second, with regard to the question of positive obligations resting on servient owners, the judgment lays a great of emphasis on the fact that all of the easements in this case required nothing of the servient owner beyond leaving existing facilities in place. They did not require maintenance because the dominant owners could maintain the relevant facilities without being required to go into possession of the servient land.
Finally, the court here is clearly applying the possession and control test from Moncrieff v Jamieson rather than the, arguably, binding, approach of ‘reasonable user’ from Batchelor v Marlow  EWCA Civ 1051. Indeed, Batchelor is not even mentioned. This is somewhat surprising given the decision in Virdi v Chana  EWHC 2901 (Ch) where the English courts continued to apply the Batchelor test notwithstanding the decision in Moncrieff, but is enormously to be welcomed. The reasonable user test, a bit like the ‘no recreational easements’ test, was unhelpful in practice, not least because despite paying lip-service to the test, the courts were, in reality, applying an altogether different standard.
Taken together, this is a very significant judgment in shaping the law relating to easements in the 21st century. It recognizes the good sense behind the possession and control test, and moves away from the distinction between recreational and other rights in assessing what is of value to land. However, the approach of the court is not without its dangers. Care must still be taken to ensure that rights granted are not too vague to constitute the subject matter of a grant. Furthermore, there is a danger in the court’s approach of overburdening land to reflect ‘fashionable’ additions to properties at any particular point in time. This is not a new phenomenon in relation to easements – consider the famous easement to use a neighbour’s outside toilet in Miller v Emcer  Ch 304– but the court’s acknowledgement that the categories of permitted easements will shift with the needs of modern society carries with it the risk that such easements are granted, but cannot then later easily be discharged. The lack of jurisdiction of the courts to discharge easements is therefor highlighted by this decision (contrast the position regarding restrictive covenants, section 84 LPA 1925).