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

An expressly granted servitude ordinarily burdens the whole parcel owned by the grantor when the deed is executed, unless the deed restricts its territorial extent. A later subdivision does not release any part of that parcel from the servitude.

The grant must define the burden clearly and is construed strictly in favour of the servient proprietor. Its application may nevertheless depend on admissible extrinsic evidence identifying physical features described in the deed. A right to use services, together with an unrestricted right to connect to them, may extend beyond a specifically named part of the servient land where the deed identifies the services by their function rather than their location.

Atlas Investments Limited and Chartwell Land Investments Limited executed a deed establishing reciprocal servitudes over neighbouring development land. Clause 2.1.1 entitled Chartwell to use and connect to services then serving the Atlas Subjects. Atlas later conveyed the Distributor Road to Axis West Developments Limited.

Chartwell laid a 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 executed. Axis claimed damages for an unauthorised encroachment. The First Division of the Court of Session held that the servitude extended to the roundabout.

The central issue was whether clause 2.1.1 confined the servitude to the Atlas Subjects or permitted connection to a qualifying sewer situated beneath another part of the land owned by Atlas at the date of the deed.

1. Appeal dismissed unanimously. Lord Hope of Craighead and Lord Clyde delivered the substantive speeches. Lord Slynn of Hadley, Lord Hobhouse of Woodborough and Lord Millett agreed with both and also dismissed the appeal.

2. Per Lord Hope, an express servitude must be considered by reference to the ownership of the dominant and servient tenements when the deed was executed. Unless the deed provides otherwise, the servient tenement is the whole parcel then owned by the grantor. Its subsequent subdivision cannot alter the land burdened by the servitude, and each singular successor takes the relevant land subject to it.

3. Per Lord Hope and Lord Clyde, a servient tenement may comprise more land than the area over which the right is actually exercised. The exercise may be confined expressly, by an established route, or by the requirement that the servitude be exercised civiliter and with the minimum practicable inconvenience.

4. Per Lord Hope, a real burden must be clearly defined and ambiguous language is construed in favour of the servient proprietor. Additional words cannot be implied, and extrinsic evidence cannot cure a deficient description. Extrinsic evidence is nevertheless admissible to apply a sufficiently specific written description to external facts. The precision required depends on the subject matter and what is practicable.

5. Per Lord Hope and Lord Clyde, clause 2.1.1 contained no territorial restriction to the Atlas Subjects. Unlike clause 2.1.2, it defined the right by reference to services which were serving those subjects when the deed was executed. That formulation could include services outside their boundaries. The deed's wider terms also identified the Distributor Road as land affected by the common scheme of reciprocal rights and burdens.

6. Per Lord Hope and Lord Clyde, the grant comprised both a right to use the qualifying services and a right to connect to them. The right of use necessarily extended along the services beyond the Atlas Subjects, and there was no basis for giving the connection right a narrower territorial scope. The sewer beneath the roundabout was admittedly serving the Atlas Subjects at the relevant date. Chartwell was therefore entitled to connect to it, and Axis's claim failed.

1. House of Lords: The appeal was dismissed unanimously, affirming the construction adopted by the First Division of the Court of Session. [1999] UKHL 59

2. First Division of the Court of Session: Held that the servitude granted by clause 2.1.1 extended to the roundabout on the Distributor Road. No citation is stated in the judgment.