Important case for utility undertakers benefiting from easements over land

Summary

The recent case of Bate v Affinity Water Ltd [2019] EWHC 3425 is important to utility undertakers and landowners with pipes and other equipment present in on or under their land. The decision is significant in its confirmation of Re Salvin’s Indenture [1938] All ER 498, often cited as authority that the undertaking of a utility undertaker can itself constitute a dominant tenement in relation to an easement over land. Re Salvin’s Indenture helps water, gas, and electricity companies in particular to enter into sequential easements and to pass their benefit along a chain. Bate will also be cited as authority that prescription can occur notwithstanding the mistaken belief of the servient owner.

Facts

The defendant’s predecessor had laid the main in 1948 (pursuant to a deed entered into in 1947) and the defendant had then, in 2005, installed a service pipe, stop tap and meter in 2005 on land owned by Mr Bate, the claimant. Mr Bate alleged that these all amounted to an actionable trespass and claimed an injunction, damages and interest. The defendant (Affinity Water) is a statutory undertaker, who submitted that there was no claim for three possible reasons:

1. The water main had been laid pursuant to an express deed of easement; or
2. The water main and service pipe had been laid in the exercise of its statutory powers; or
3. There was an easement by prescription.

Mr Bate relied on Re Ellenborough Park [1955] EWCA Civ 4, that there must be a dominant tenement (benefiting land) and servient tenement (burdened land) for the creation of an easement. However, Re Salvin’s Indenture decided that the whole of a public company’s undertaking (consisting of various parcels of land, statutory rights, rights of way etc) was a dominant tenement for the purpose of an easement.

Decision

The judge in the High Court identified, by way of extrinsic evidence, land near to the claimant’s as the dominant tenement notwithstanding that it wasn’t expressly identified in the 1947 deed. It housed a borehole and pumping equipment and the judge was satisfied that the transportation of water benefited this land. This meant that the water company did not need to rely on Re Salvin’s Indenture to support its claim to an easement, however the judge still confirmed the correctness of Re Salvin’s Indenture concluding that there was no reason why, in an appropriate case, the dominant tenement for an easement to lay maintain and use pipes underground could not consist of the undertaking itself, that is land and rights on and with which the business is carried on.

The judge rejected Mr Bate’s argument that there could be no acquiescence by a servient owner in the use of his land where he believed that the dominant owner had a legal right. The servient owner had 20 years to check and must bear the consequences if he did not do so. The judge also accepted the water company’s argument that the pipe was laid by way of statutory powers, and held that the water undertaker was not required to choose whether it was proceeding by way of private law grant or statutory power and was not required to make an election as to which it was exercising. It was also not required to make a conscious decision to use its statutory power in order to exercise it.

Co-authored by Ciara Berry.