Easements and utilities—third party land

The following Property practice note provides comprehensive and up to date legal information covering:

Easements and utilities—third party land
Securing necessary easements
Choice of rights
Existing easements may be too general
Route of easement
Derogation from grant
Compulsory acquisition of wayleave
Drafting

Securing necessary easements

Where third party land intervenes between a new development and the public highway, most developers are aware that they will need to secure a right of way over the third party land in order to access the development.

It is important that easements required for utilities and services are not overlooked. Where land is sold in parts, the supply of essential services to the new development depends on the effective grant of easements over any land in third party ownership.

Choice of rights

A utilities provider may have a choice whether to acquire a private easement to lay and maintain facilities across other land, or to rely on statutory rights (for example under the Water Industry Act 1991 or the Electricity Act 1989—see Practice Note: Statutory wayleaves and rights of access).

Where a private easement is granted, it is not necessarily essential that dominant land is identified in the usual way: the statutory undertaker itself can constitute the dominant tenement. See News Analysis: Water undertakers—statutory rights, private grant and prescriptive easements (Bate and another v Affinity Water Ltd).

Existing easements may be too general

The fact that an easement may already exist is not necessarily the end of the matter. If it is reserved in general terms (eg the precise route and terms of access are not specified) the developer may still run into difficulties.

In William Old International

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