Untangling pipes, wires and utilities

We have come a long way since Claudius had the first wooden and lead water pipes installed in Britain in the first century AD. Ofgem claims that were the country’s existing network of gas and electricity pipes and cables linked together, they would reach to the moon and back. Add water pipes, sewers and telecoms cabling, and that makes for a huge density of conducting media. Thus it was that, in 2006, a Times journalist was able to refer to “the tangled mess of eight million miles of pipes and cables under the streets of Britain”. Then add to this service network the means of conducting people around the country – roads, canals and railways – and the result is an enormous quantity of media that need to find a home, in the sense of places where they can be lawfully installed, used and maintained. Some of this activity takes place by private treaty – for example, where two adjoining landowners negotiate on the grant of a right of way over each other’s land. But where many landowners are involved, as is commonly the case with long pipelines or cable runs, then the utility company is often able to invoke a statutory power to secure its aim, using powers to enter land to install and maintain its pipes or cables under the Gas Act 1986, the Electricity Act 1989, the Water Industry Act 1991 or the new Electronic Communications Code. In broad terms, these statutes operate in the same way, requiring notices to be served and conditions to be satisfied before entry can be effected, and then requiring the payment of compensation to the landowner. The procedure is relatively cumbersome and inflexible, and, surprisingly, many utility companies avoid the procedure and simply enter into private transactions with each landowner, sometimes described as easements, but often simply as wayleaves or licences. This suits both parties: the landowner, because it will usually receive consideration in the form of a rent; the utility company, because it can speed ahead with its project, using its statutory power only where that is really necessary (if indeed it is available at all). Lurking in what is admittedly a fairly esoteric area of the law is a group of cases that illustrates what may go wrong when such private arrangements are entered into, in the alternative to the use of statutory powers. The question that often arose was whether the landowner had the right either to carry out works to its own land that might jeopardise the utility in question (for example, by mining the ground around it) or, indeed, to terminate the arrangement altogether. If the utility company cannot point to the existence of a statutory power supporting the maintenance of the utility, then it will need to fall back on its property rights. Farmer Jones And here often lies the difficulty. If the right to install and maintain the utility is created by a document described as a licence or wayleave, and if that is its true effect (cue much argument by property lawyers), then the right will be unlikely to bind the successors in title of the original landowner. So if Farmer Jones, who has granted a pipe wayleave to a water company, sells his land to Farmer Giles, the latter may well be entitled to require the water company to take its pipe away (although bear in mind, dear reader, that I simplify the position somewhat.) It is only if the document genuinely creates an easement that Farmer Giles will be bound. The Akond of Swat But there too lies a difficulty. A utility easement notoriously requires both a dominant tenement (the land which is served by the easement) and a servient tenement (the land over which the utility runs). In the case of a pipeline easement, it is, of course, easy to identify the servient tenement (Farmer Jones’s land) – but who or why or where or what is the dominant tenement? This question may be answered by the terms of the document itself: it may say that the dominant tenement is the adjacent reservoir or power station. If it does not, then the utility company may be able to show, by use of other evidence, what the pipe actually serves. But (and I know this sounds silly) all utilities have two ends: the generating end and the receiving or consuming end. So which is the dominant tenement? Our current law seems to require that it can only be one or the other. This question was ingeniously resolved by the High Court in Re Salvin’s Indenture [1938] 2 All ER 498 by the judge’s finding that the whole water company’s undertaking was the dominant tenement, thus rendering it unnecessary to resolve the precise identity issue. Re Salvin has received much criticism over the decades, both from judges in other cases, and from legal text writers. The judgment has, however, just been approved by another decision of the High Court: Bate v Affinity Water Ltd [2019] EWHC 3425 (Ch). In that case, a water company installed a substantial mains water pipe beneath a third party’s land in the 1940s, connecting a nearby borehole and pumping station with a distant reservoir. There it lay buried for more than seven decades, until the servient owner objected to its presence, because it obstructed a redevelopment project. The servient owner contended that the pipe had not been installed pursuant to a statutory power; and although the installation agreement was described as an easement, it could not be so, for lack of an identifiable dominant tenement. The judge rejected all such contentions, holding in addition (valuably for utility companies) that the mere fact that the parties have chosen to proceed by way of private treaty for the installation does not necessarily have the consequence that the statutory powers were not also in play.   Guy Fetherstonhaugh QC is a barrister at Falcon Chambers