Mainline Pipelines Ltd v Phillips and another

Easement – Ancillary rights – Summary judgment – Claimant claiming right of access to defendants’ land to repair multi-fuel pipeline – Defendants declining to allow access – Claimant relying on lease granted to enable pipeline to be installed and seeking final injunction – Claimant applying for summary judgment – Whether appropriate to grant application for summary judgment – Application granted The claimant owned and operated a cross-country network of multifuel pipelines which transported fuels from Milford Haven in Pembrokeshire to other parts of the United Kingdom. One part of those pipelines ran underneath three fields forming part of the defendants’ farmland at Bryncyrnau Uchaf, Cwmffrwd, near Carmarthen in south Wales. The Pipe-lines Act 1962 was enacted to provide a regulatory framework within which a national grid of underground fuel pipelines could be built. It included compulsory purchase powers. In 1972, the defendants’ predecessors in title (along with their neighbours) granted a 99-year lease to the claimant of small strips of their land to enable the pipeline to be installed. Each lease was granted in consideration of a small premium, but without any rent and provided for compensation to be paid in case of damage to the property of the grantor of the lease, and for an indemnity against other losses. The defendants declined to allow the claimant access to the pipeline for the purposes of repair without substantial compensation being agreed in advance. The claimant argued that the words “TOGETHER WITH the right to enter upon the land of the Grantor” and following, in clause 1 of the 1972 lease, created an easement over the remainder of the field in favour of the claimant for the benefit of the strip of land demised. Accordingly, it had a right to enter the remainder of the field to inspect and repair the pipeline. The claimant applied for summary judgment. Held: The application was granted. (1) On an application for summary judgment, the court had to consider whether the defendants had a realistic prospect of successfully defending the claim. The court had to take account of all the available evidence and whatever further evidence might reasonably be expected to be available at trial. Where there was a short point of construction of a document, the court was satisfied that it had all the evidence necessary to determine that question and the parties had had an adequate opportunity to argue the point, the court should decide it: ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 and Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) applied. In the present case, the dispute between the parties was about the meaning of the lease. It seemed unlikely that any further evidence would emerge at trial which would have more than a negligible bearing (if any at all) on the interpretation of the lease. The defendants had an adequate opportunity to argue the points in issue. Therefore, it was appropriate to deal with the matter of construction on this application for summary judgment. (2) The four essential characteristics of an easement were: (i) a dominant and a servient tenement; (ii) the easement had to accommodate the dominant tenement; (iii) the dominant and servient owners had to be different persons; and (iv) a right over land could not amount to an easement unless it was capable of forming the subject matter of a grant. Condition (iv) had become a repository for miscellaneous requirements held to be essential characteristics of an easement. They included the requirements that the right was: defined in sufficiently clear terms, was not purely precarious, was not so extensive or invasive as to oust the servient owner from the enjoyment or control of the servient tenement, and should not impose upon the servient owner obligations to expend money or do anything beyond mere passivity: Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] EGLR 1 applied. (3) In order for ancillary rights to be granted as an effective easement in law, rights had to be exercisable over different land (the servient tenement) to the land thereby benefited (the dominant tenement), owned, whether freehold or leasehold, by two different people. A leasehold right of access over the demised land would be a right granted to the leaseholder to go on his own land. It could not amount to a valid easement for the benefit of that land and the ancillary rights would add nothing of value to the lease. Accordingly, the meaning of the words “TOGETHER WITH” etc was that the parties to the lease intended to create rights over the remainder of the field (but not any other part of the defendants’ farm) for the benefit of the land demised. (4) Nothing in the lease provided for other consents to be obtained before the ancillary rights could be exercised. Such preconditions could be implied. However, anything to be implied had to be either so obvious as not to need stating, or necessary to give business efficacy to the transaction. It was still a question of the parties’ intention: Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 and Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] EGLR 8 considered. In the present case, the only person directly affected by the exercise of ancillary rights was the lessor (the defendants) who had an indemnity from the lessee (the claimant) for any loss that the works might cause. If any damage was caused to the land or the defendants suffered any other loss because of the works, the claimant had to put it right or pay compensation. It was not obvious, and did not go without saying, that consents, confirmations and agreements had to be obtained, given or entered into before the ancillary rights could be exercised. There were no implied terms to that effect. (5) There was nothing to indicate that the parties had to agree the amount of compensation before the claimant could exercise the ancillary rights granted for the benefit of the demised land over, and in relation to, the remainder of the field. There was a dominant tenement (the demised land) and a servient tenement (the remainder of the field) which were owned by different persons. The ancillary rights created by the lease could form the subject matter of a grant. The rights were expressed in sufficiently clear terms, they were not exercisable only with the consent of the defendants, and they did not confer so much control of the field on the claimant as to oust the defendants. Nor did they require the defendant to spend any money or do anything positive. Therefore, the ancillary rights amounted to an easement in law, binding upon the defendants and exercisable without the defendants’ consent, and without any agreements for compensation being agreed in advance. (6) On the undisputed or accepted facts, the meaning and effect of the 1972 lease were so clear that there was no real prospect of the defendants successfully defending the claim at trial. There was no other compelling reason for a trial and none was suggested. Accordingly, it was appropriate to grant the claimant summary judgment. Nicholas Taggart (instructed by Veale Wasbrough Vizards LLP) appeared for the claimant; The first defendant appeared in person; The second defendant did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of Mainline Pipelines Ltd v Phillips and another