To be an effective easement, ancillary rights must be exercisable over different land (the servient tenement) to the land to be benefited (the dominant tenement), and the tenements, whether freehold or leasehold, must be in different ownership.
In Mainline Pipelines Ltd v Phillips and another [2023] EWHC 2146 (Ch) the claimant succeeded in obtaining summary judgment to exercise an easement to access and carry out works to its pipeline under the defendants’ field.
The pipeline ran beneath three fields forming part of the defendants’ farmland near Camarthen, south Wales. In 1972 the defendants’ predecessors granted to the claimant a 99-year lease of a small strips below the surface of the land, 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 also provided for compensation to be paid in case of damage to the grantor’s property and an indemnity against other losses.
The claimant wished to undertake an inspection and repair work on the pipeline. The defendants refused access to the remainder of the field without prior agreements and compensation paid upfront. The claimant issued proceedings to enforce its rights under the lease in November 2022 and sought summary judgment.
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 on to 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 – including the installation of fencing and gates and payment of compensation – were required before the rights could be exercised.
The court decided that the express words used in the lease created a demise of an underground box beneath the field and ancillary rights over the field, to get to the demise. If the defendants were right, the ancillary rights would allow the claimant to go on to its own land. This could not be a valid easement and would add nothing of value to the lease.
There were no preconditions to the exercise of the ancillary rights and no need for them as the defendants had an indemnity from the claimant for any loss caused by the works. On the undisputed facts of the case, the meaning and effect of the lease were so clear that there was no real prospect of the defendants successfully defending the claim at trial.
Louise Clark is a property law consultant and mediator
