Louise Clark analyses an easement dispute over a subterranean pipeline.
Key points
- An easement requires parcels of land in different ownership with a right over one (servient) for the benefit of the other (dominant)
- An easement is a property right and enforceable if properly registered
In Mainline Pipelines Ltd v Phillips and another [2023] EWHC 2146 (Ch); [2023] PLSCS 145, the claimant succeeded in obtaining summary judgment to exercise an easement to access and carry out works to its pipeline under the defendants’ field. In the course of his judgment, the judge considered the requirements for an effective easement.
Background
The claimant owned and operated a cross-country network of pipelines transporting petrochemicals around the country from Milford Haven in Pembrokeshire. One part of the pipelines ran beneath three fields forming part of the defendants’ farmland near Carmarthen in South Wales, although the claim related to only one of them. The fields were used to grow silage.
The claimant wished to undertake an inspection and repair work on the pipeline following an internal examination by automated device. There was a meeting in January 2021 to discuss the inspection and the works the claimant wished to undertake. It was subsequently confirmed in correspondence that the works would be undertaken under existing leasehold rights and that compensation for any damage caused would be paid afterwards. The defendants accepted neither proposition. They refused access to the remainder of the field without prior agreements and compensation paid upfront.
After lengthy correspondence, including an offer to contribute to the cost of the defendants obtaining legal advice, the claimant issued proceedings to enforce its rights in November 2022. It sought summary judgment following service of the defence.
The lease
In 1972 the defendants’ predecessors in title had granted to the claimant a 99-year lease of small strips of their land below the surface, to enable the pipeline to be installed “together with” the right to enter the grantor’s land to lay the pipeline and to use, maintain, repair, inspect and replace it. The lease was granted for a small premium but without any rent.
The lease provided that, in exercising the rights granted, the claimant would do as little damage as possible to the land and any crops growing on it. It would make good or pay compensation for any damage caused, as well as indemnifying the grantor against all costs, claims and liabilities arising from the claimant’s exercise of its rights.
The law
Lord Briggs summarised the law relating to easements in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] EGLR 1. The four essential characteristics of an easement are:
(i) There must be a dominant and a servient tenement;
(ii) The easement must serve or accommodate the dominant tenement, so, for example, a right of way makes the dominant tenement more accessible;
(iii) The dominant and servient owners must be different persons; and
(iv) A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
The claimant argued that the words “together with” created an easement over the remainder of the field for the benefit of the strip of land demised, which entitled it to enter onto the defendants’ land to inspect and repair the pipeline.
The defendants argued that the ancillary rights did not extend beyond the strip of land demised by the lease and that agreements – for the fencing of the land and installation of gates, confirmation that single farm payments would be unaffected by the works and payment of compensation – were required before the rights could be exercised.
The decision
The court decided that the express words “all that strip of land” in the lease created a demise of an underground box or tunnel passing beneath the field. The words “together with” granted ancillary rights “over the land of the grantor”. The two different expressions used by the draftsperson meant two separate parcels of land, one the subject of the lease, the other the subject of the ancillary rights.
It would make no commercial sense to grant a long lease of a strip of land and then purport to grant a right of access to it only over itself or the surface lying directly above it, as the defendants argued. The commercial purpose of the arrangement was to allow the claimant to lay a pipeline under farmland and then to look after it. It made far more sense to grant a right of way over the surrounding land – the field – to get to the strip.
In order to be an effective easement, the ancillary rights had to be exercisable over different land (the servient land) to get to the land benefited (the dominant land) and owned by different people, whether the land was freehold or leasehold. These requirements were satisfied. The ancillary rights created a valid easement in favour of the claimant, which were property rights, properly registered, which bound the defendants.
The lease contained no limitations or any preconditions to be satisfied before the ancillary rights could be exercised and none were required. The only persons directly affected by the exercise of the ancillary rights were the defendants, as successors to the grantor of the lease, and the claimants were required to put right or to pay for any damage done and to indemnify the defendants for any loss caused by the works.
On the undisputed facts of the case, the meaning and effect of the lease was so clear that there was no real prospect of the defendants successfully defending the claim at trial. The claimant was entitled to summary judgment.
Louise Clark is a property law consultant and mediator
