Most conveyances and transfers of part grant and reserve rights, especially in cases where land is ripe for development. Easements for the passage of services usually comprise the right to use service installations, with ancillary rights of access, for repair, maintenance and renewal. In cases where it is not possible to connect to service installations along the boundaries, the owner of the dominant land may reserve an additional right to lay new services to connect with service installations on the servient land. Difficulties can arise if development does not take place immediately, especially if the right to lay new services is not limited by reference to a defined area.
The Carlisle County Court decision in Dixon v Hodgson [2007] 04 EG 188 provides an example of some of the tensions that may arise in such cases. Dixon turned on the construction of a conveyance that excepted and reserved rights to connect to service installations on the land that was being transferred.
Most conveyances and transfers of part grant and reserve rights, especially in cases where land is ripe for development. Easements for the passage of services usually comprise the right to use service installations, with ancillary rights of access, for repair, maintenance and renewal. In cases where it is not possible to connect to service installations along the boundaries, the owner of the dominant land may reserve an additional right to lay new services to connect with service installations on the servient land. Difficulties can arise if development does not take place immediately, especially if the right to lay new services is not limited by reference to a defined area. The Carlisle County Court decision in Dixon v Hodgson [2007] 04 EG 188 provides an example of some of the tensions that may arise in such cases. Dixon turned on the construction of a conveyance that excepted and reserved rights to connect to service installations on the land that was being transferred. The plan used in that conveyance was a copy of the plan that had been used to obtain planning permission to construct a bungalow on the retained land. It showed two drains: an old drain, which ran from the retained land through the land transferred, to the main sewer, and an alternative drain, which ran to the main sewer from a point on the land transferred that was quite remote from the new bungalow. The plan also contained notes relating to the proposed drainage runs, which were obviously relevant to the planning application, but which were not referred to in the conveyance. The owners of the servient land relied upon the notation on the plan, which suggested that the parties had intended to connect the bungalow to the old drain. They argued that the owner of the bungalow had no right to dig up their access way and courtyard to lay a new pipe to connect to the alternative drain. However, the judge concluded that this did not constitute a legitimate use of the plan. The parties had used the plan to indicate the boundaries of the respective properties, but had not restricted the easements for services by reference to the plan. The easements were therefore to be construed by reference only to the words in the conveyance. It is open to debate whether the judge’s decision was correct. Were the rights in the conveyance really wide enough to permit the owner of the bungalow to lay an entirely new pipe across the land transferred? However, there is an important practical lesson to draw from this case. Draftsmen need to think carefully about the relationship between words and plans in conveyances and transfers. Grantors should think carefully about specifically excluding any right to lay new service media. If this is not practicable, the parties should identify a specific corridor through which services will pass, failing which the grantor should reserve the right, while acting reasonably, to approve the route of any new services. Allyson Colby is a property law consultant
