Axis West Developments Ltd v Chartwell Land Investments Ltd (Scotland)

An expressly granted servitude is construed by reference to the ownership and circumstances existing when the deed was executed. Unless the deed limits the servient area, the servient tenement comprises the whole land then owned by the grantor. Later subdivision does not reduce the land burdened.

The deed must define the nature and extent of the burden with sufficient clarity. Ambiguity is resolved in favour of the servient proprietor. Extrinsic evidence may nevertheless identify physical services on the ground where the deed supplies a specific written description. A right to use and connect to services currently serving identified land may extend beyond that land's boundaries, subject to civiliter exercise with minimum practicable inconvenience.

Atlas Investments Limited and Chartwell Land Investments Limited executed a deed creating reciprocal servitudes for adjoining development land. Clause 2.1.1 granted Chartwell rights to use and connect to utilities, drains and sewers currently serving the Atlas Subjects. Atlas later conveyed the Distributor Road to Axis West Developments Limited.

Chartwell laid a surface-water drain across the Atlas Subjects and beneath a roundabout on the Distributor Road to connect with a sewer which had served the Atlas Subjects when the deed was made. Axis alleged unauthorised encroachment and sought damages measured by the price of a servitude or wayleave.

The First Division of the Court of Session construed the deed in Chartwell's favour. The central issue before the House was whether clause 2.1.1 extended the servitude beyond the Atlas Subjects to the sewer beneath the Distributor Road.

1. Appeal dismissed unanimously. Lord Hope of Craighead and Lord Clyde delivered the reasoned speeches. Lord Slynn of Hadley, Lord Hobhouse of Woodborough and Lord Millett agreed with both and with the dismissal.
2. Per Lord Hope, the identity of the dominant and servient tenements under an express grant must be determined from the state of affairs when the deed was executed. Unless the grantor expressly limits the burden to part of the land, the servient tenement is the whole parcel then owned by the grantor. A later subdivision cannot reduce the land subject to the servitude, although the rule of civiliter exercise may confine its practical exercise to part of that land.
3. Per Lord Hope and Lord Clyde, burdens on land require clear expression and are construed strictly against the dominant proprietor. The deed must be read as a whole, in its contemporary context and with regard to the purpose of the grant. Clause 2.1.1 contained no territorial restriction to the Atlas Subjects. Its reference to those subjects identified the services to which the rights attached, namely services currently serving them when the deed was made.
4. Per Lord Hope and Lord Clyde, the combined rights to use the services and to make connections to them had the same territorial reach. Effective use necessarily extended along the services beyond the Atlas Subjects. The contrast with clause 2.1.2, which expressly confined installation work to the Atlas Subjects, confirmed that clause 2.1.1 was not similarly confined. The additional access provisions concerning the Atlas Subjects did not restrict the primary grant.
5. Per Lord Hope, agreeing with and applying McLean v Mawhirn Developments Ltd, a sufficiently specific written description may be applied to external facts by extrinsic evidence. The need to identify the location and extent of the relevant services from maps or plans did not make the grant uncertain. The agreed sewer was serving the Atlas Subjects when the deed was made. Chartwell was therefore entitled to connect beneath the roundabout, subject to exercising the servitude with minimum practicable inconvenience.

1. House of Lords: Dismissed Axis's appeal unanimously and affirmed the construction adopted below. [1998] UKHL 48
2. First Division of the Court of Session: Held that clause 2.1.1 extended to the sewer beneath the Distributor Road. The citation is not stated in the judgment.