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

The House of Lords interpreted an express servitude granted by clause 2.1.1 of a mutual deed. The court held that the territorial extent of a servitude is determined by the state of the parties' tenements at the date of the grant and that a servitude granted in favour of the proprietor of particular subjects will, unless expressly limited, bind the whole of the land owned by the grantor at that date and bind successors in title. Applying the presumption in favour of freedom of use of land and the requirement of clarity for burdens, the Lords concluded that a grant to "make use of and to make connections to" services "currently serving the Atlas Subjects" was sufficiently certain and could be identified by extrinsic evidence. Because the right included both use of services and to make connections, the right to make connections was not confined to the surface area of the Atlas Subjects and extended to a sewer under the distributor road. The appeal was therefore dismissed.

This dispute concerned the interpretation and territorial extent of a servitude created by a deed between Atlas (the grantor) and Chartwell (the grantee). Axis West Developments became singular successor to part of Atlas's land (the Distributor Road including a roundabout) and objected when Chartwell laid a drain across that land to connect to a main sewer beneath the roundabout. Axis claimed that clause 2.1.1 of the Deed only authorised use and connections to services within the Atlas Subjects and that Chartwell’s works were an unauthorised encroachment for which damages were due.

Nature of the claim: Axis sought damages for alleged trespass/unauthorised encroachment and contended that Chartwell lacked a servitude right to connect to the sewer under the Distributor Road.

Issues framed:

• What were the servient and dominant tenements for the servitude created by clause 2.1.1?
• Whether clause 2.1.1 permitted Chartwell to make connections to services located outside the Atlas Subjects, in particular the sewer under the Distributor Road roundabout?
• Whether the description of the servitude was sufficiently certain to bind successors in title and permit extrinsic evidence to identify the services and their location?

Procedural posture: This was an appeal to the House of Lords from the First Division of the Court of Session (Scotland), which had construed the deed in favour of Chartwell.

Reasoning and decision: The Lords emphasised that where a servitude is created by express grant its territorial extent is determined by the parties' holdings at the date of the grant and that subdivision thereafter does not remove the servitude from parts of the original servient tenement unless the deed expressly so provides. Although burdens must be stated with sufficient clarity and are construed strictly against the dominant owner, a description of services "currently serving" the Atlas Subjects was capable of identification by admissible extrinsic evidence (for example maps and plans) and met the required degree of certainty. As the grant comprised both the right to use services and to make connections to them, the two parts of the grant should be given effect equally; it would be artificial to confine the right to make connections to within the Atlas Subjects and thereby render clause 2.1.1 largely redundant in relation to clause 2.1.2. The House of Lords therefore dismissed the appeal and held that Chartwell was entitled to connect to the sewer beneath the roundabout.

Appeal dismissed. The House of Lords held that the servitude created by clause 2.1.1 extended to services "currently serving the Atlas Subjects" as at the date of the deed, that this description was sufficiently certain (extrinsic evidence could identify the services), and that the right to make connections was not confined to the Atlas Subjects but extended to the sewer under the Distributor Road; accordingly Chartwell's connection was authorised.

Appeal from the First Division of the Court of Session (Scotland), which had construed the Deed in favour of the respondents (Chartwell). No further neutral citation for the earlier decision is provided in the judgment.