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

The House of Lords considered the construction of an express servitude granted by deed (clause 2.1.1) and the territorial extent of the servitude when the servient tenement has subsequently been subdivided. The court held that the servitude is to be assessed by reference to the state of the land at the date of the deed: the servient tenement is the whole land owned by the grantor at that date unless the deed expressly limits the area subject to the servitude.

The court construed clause 2.1.1 as conferring rights to make use of and to make connections to services "currently serving" the Atlas Subjects at the date of the deed and concluded that those words adequately defined the extent of the servitude. Extrinsic evidence (for example plans) may be used to identify which services were then serving the Atlas Subjects. The presumption in favour of freedom of use was recognised, but the deed’s language and surrounding provisions showed an intention to grant rights extending to the sewer under the distributor road (including the roundabout) and the appeal was dismissed.

The dispute concerned a development deed in which Atlas granted Chartwell reciprocal servitude rights to use and make connections to various utilities "currently serving the Atlas Subjects" (clause 2.1.1). After the deed Atlas conveyed part of the land (the distributor road, including a roundabout) to Axis. Chartwell later laid a drain across the roundabout to connect with a main sewer under the roundabout. Axis sued for damages for trespass, asserting that clause 2.1.1 was territorially limited to the Atlas Subjects and therefore did not permit connections on land subsequently conveyed to Axis.

The procedural posture was appellate: the House of Lords was hearing an appeal from the First Division of the Court of Session, which had upheld Chartwell's construction. The issues the court framed were (i) how to identify the servient tenement and the territorial extent of a servitude created by express grant; (ii) whether clause 2.1.1 was sufficiently certain and whether it extended to services located outside the Atlas Subjects (in particular the sewer under the distributor road); and (iii) whether extrinsic evidence was admissible to identify the location of the services.

The Lords reasoned that where a servitude is granted by deed the servient tenement is the land owned by the grantor at the date of the grant unless the deed expressly limits the servitude to a part of that land. Clause 2.1.1 defined the scope of the servitude by reference to the services "currently serving" the Atlas Subjects; that was a sufficiently certain territorial definition because the existence, nature and location of those services could be ascertained by admissible extrinsic evidence (plans, maps and factual proof). The court also held that the grant comprised two linked rights — the right to use services and the right to make connections — and that they should be construed to operate equally so that making connections could extend beyond the Atlas Subjects where necessary to connect to services serving them at the date of the deed. Applying these principles, the Lords concluded the sewer under the roundabout was one of the services serving the Atlas Subjects at the date of the deed and Chartwell was entitled to connect to it; accordingly the appeal was dismissed.

Appeal dismissed. The House of Lords held that a servitude created by express grant is to be judged by reference to the state of the lands at the date of the deed so that the servient tenement comprises the whole land then owned by the grantor unless the deed expressly limits it. Clause 2.1.1, by reference to services "currently serving" the Atlas Subjects, gave Chartwell the right to make connections to services serving those subjects even if the services (for example the main sewer) lay outside the Atlas Subjects; extrinsic evidence was admissible to identify those services. The respondents were therefore entitled to connect to the sewer under the roundabout and the appeal was dismissed.

Appeal to the House of Lords from the First Division of the Court of Session (Scotland). The First Division's construction of the deed was affirmed by the House of Lords. (No neutral citation for the Court of Session decision given in the judgment.)