*this article makes no reference to trains or automobiles.
The recent case of Bate and another v Affinity Water Ltd [2019] EWHC 3425 (Ch) takes us back to basics on some fundamentals concerning ‘easements’ (read: legal rights to make use of another’s property).
The case touches on two issues in particular which will be relevant not only to residential property owners, but also to developers exploring potential site purchases.
1 – Dominant and servient land
One of the key requirements for creating a valid legal easement is that there needs to be ‘dominant’ and ‘servient’ land – or put another way, there needs to be a piece of land that has the benefit of the right being granted (the dominant land) and there needs to be a piece of land that is subject to the right (the servient land); unless this requirement is fulfilled, the easement will (usually) fail.
What happened in this case is that Mr. Bate (the landowner) sought to argue that his local water company didn’t actually have a legal right to use the water mains that had been laid across his property, on the basis that although the water company could produce and point to a ‘deed of easement’ that purported to create the necessary rights, the deed failed to identify any ‘benefitting/dominant’ land.
The Court looked at the water company’s deed of easement and saw that it indeed didn’t identify any ‘benefitting/dominant’ land in the usual way, but concluded that this didn’t actually matter, pointing to a case known as Re Salvin’s Indenture, Pitt v Durham County Water Board [1938] 2 All ER 498.
Re Salvin related to a similar set of circumstances and (paraphrasing) concluded that where you are dealing with statutory undertakers (as they are known now), it isn’t always necessary to identify dominant land on the basis that “the [undertaker] or its business will have land and assets (be they tangible or intangible) somewhere that will ultimately benefit from the grant of the right in question”.
To many the judgement in Re Salvin may sound rather too surreal for comfort, as it gives a green-light to the creation of legal rights over land for the benefit of a third parties’ (potentially) intangible and unidentified assets, which flies in the face of the most fundamental rule about easements.
In Bate, though, the High Court confirmed Re Salvin as being good law – which probably came as a relief to statutory utility companies, as the case has been used (by utility companies) to ‘plug holes’ in what would otherwise be considered defective deeds of grant for many years.
2 – Prescriptive rights
Another point considered in Bate relates to what are known as ‘prescriptive’ rights/easements, which are legal rights it is possible to acquire (although ‘accrue’ may be more accurate), if ‘you can get away with doing something for long enough without anyone making a fuss’ (subject always to certain requirements being met).
In this case, the water company had sought to argue as a ‘plan B’ that in the event there was something wrong with its deed of easement, it had certainly been using the water mains for in excess of 20 years (the required period to qualify for a ‘prescriptive’ right), so on that basis it had its bases covered in any event.
Now, one of the things that will help to substantiate a claim for a prescriptive easement is if it can be shown that the subjected landowner has acquiesced in the unauthorised use of the land by the party claiming the easement, which in this case the water company contended Mr Bate had done.
Mr Bate argued that he couldn’t have ‘acquiesced’ in the water company’s use of his property, as he had previously believed the deed of grant had been valid (before the parties ended up in Court), so whatever the position had been prior to the proceedings he certainly couldn’t have acquiesced in it – to which the High Court said (a) “nonsense” (also a paraphrase), (b) that there had been ample time to realise there was a potential issue with the deed of grant in the 20-plus years before the Court proceedings, so (c) whether or not Mr Bate had acquiesced in anything or not, it was certainly too late to be making that sort of argument now.
SUMMARY
Is there a takeaway point here? Yes, a simple and predictable one: whatever you assume or believe the situation to be in relation to a property, it’s always worth seeking confirmation or advice from a competent lawyer, particularly where statutory supply companies are involved, as more often than not they benefit from their own special sub-set of rules and procedures which exist to entrap the unwary..!
For more information on drainage right or issues please contact commprop@prettys.co.uk.