182: Utility undertakers benefit from easements over privately owned land
It is fairly commonplace for utility suppliers to enter into easements with landowners that grant the supplier the right to install its apparatus within privately owned land, and to enter onto that land to maintain and replace the apparatus thereafter.
It is also well established that easements are characterised by the following key features:
- there must be land over which the easement is enjoyed, which is typically called the servient or burdened land or tenement, and separate land that benefits from the easement, typically called the dominant or benefitting land or tenement;
- the dominant and servient land must be in separate ownership;
- the easement must be linked to and benefit the dominant land in some way, and has to be more than a mere personal advantage conferred on the owner of the dominant land; and
- the easement must be capable of forming the subject matter of grant; that is to say it must be capable of being granted by deed, even if it is has been created by some other method, such as prescription (long uninterrupted use) or impliedly.
Utility suppliers are in a slightly unusual position in that unless their apparatus is laid to serve a nearby power station or reservoir, they do not generally have dominant land which benefits from the easement. This therefore calls into question whether such arrangements can even be easements in the absence of a dominant tenement.
The 1938 case of Re Salvin’s Indenture established that the actual undertaking of a public utility supplier can constitute the dominant tenement, and although the case has been criticised over the years, its judgment has recently been affirmed by the recent case of Bate and another v Affinity Water Ltd.
A water main and service pipe had been laid by a water company in the 1940s under the terms of an agreement beneath land now owned by Mr Bate. Mr Bate intended to carry out a redevelopment of that land and took issue with the pipe being present, as it was an obstruction.
Affinity Water contended that the pipe had been laid pursuant to a deed of easement, and failing that, had been laid pursuant to statutory powers. Mr Bate disputed both arguments and further contended that as the deed of easement lacked a dominant tenement, no easement had been created.
The court rejected Mr Bate’s arguments, holding that in fact a dominant tenement was present: this being nearby land in which a pumping station and borehole were situated. Even though a physical dominant tenement was established, the court still commented on Re Salvin holding that it was likely that a dominant tenement could constitute a utility provider’s undertaking in the absence of a physical land holding.
In addition, the court also accepted that the pipe had been laid pursuant to the water authority’s statutory power; the fact that the original parties had entered into a private agreement did not mean that the authority had to choose between exercising its rights under the agreement or by way of its statutory powers. No doubt, this particular part of the judgment will be of welcome news to utility providers.