Developing land inevitably requires the installation of service media to serve the proposed development.
This will require the completion of a deed of easement with the relevant utility company who will ultimately be responsible for the maintenance of such service media.
The utility company will usually provide their own standard form of deed which is drafted to address their specific concerns and requirements to ensure that they have the benefit of sufficient rights and restrictions to enable them to maintain the service media.
A few points for the landowner/developer (as grantor) of the easement to consider are discussed below.
The impact of an Easement Strip
Easement Strip width and location
The utility company will require an area of land (known as the Easement Strip) located on either side of the service media to be kept free from buildings or other obstruction to enable works to be carried out. This will include, amongst other things, digging into the ground to inspect, maintain and repair the service media.
The width of the Easement Strip required will depend on the specification of the relevant service media but is typically between 1.5 metres and 3 metres either side of the service media.
Implications for site layout and planning
The requisite Easement Strip needs to be considered in relation to the proposed curtilage of dwellings or other buildings comprised in the development. For example, does the Easement Strip encroach into the gardens, car parking or service areas of properties to be let or sold? If so, the deed of easement should be completed before the sales or leases are completed to avoid having to join the buyer or tenant (and any mortgagee) as party to the deed because additional parties add an extra layer of complexity, delay and cost which is best avoided.
The deed will prevent building over the Easement Strip or planting trees, bushes and other plants within it which could adversely impact the service media. Therefore, the extent and nature of any landscaping scheme should have regard to the Easement Strip and its associated restrictions.
Are the utility companies able to access the land at any time?
The utility company will require the right to access the land at any time in the event of an emergency but outside of those circumstances, should they be able to access the land at any time or only at certain hours following reasonable prior notice?
The location/route of the service media will determine how much of a concern this is in practice.
Responsibility for damage caused by future maintenance work
Under the deed the utility company will have a right to break up the surface of the Easement Strip to carry out works to the service media. They will have an obligation to cause as little damage as possible when exercising such rights.
The deed should require the utility company to make good any damage caused. Ideally, any making good should be carried out to the satisfaction of the developer acting reasonably.
Payment in lieu of damages
Of late, utility companies are preferring to have the choice whether to make good damage caused or instead to pay compensation.
If as developer you are retaining a long-term interest in the development, are you happy to accept a payment in lieu and carry out the repairs yourself?
If the Easement Strip is being transferred to a management company, will this management company be happy with a payment in lieu?
Futureproofing
Planning for future development opportunities
If you own or control an adjacent potential development site, you may need the ability to adjust the route of the service media to accommodate that future development.
Some utility companies are prepared to agree what are known as ‘lift and shift’ provisions. These allow you to request that the route of the service media is relocated/diverted at your cost. Generally, lift and shift provisions can only be used once.
Third party land
Dealing with third party consent and negotiation
Does the route of the service media cross third party land? If so, unless the utility company exercises requisition powers, you will need the cooperation and agreement of the third party who will need to be joined as party to the deed of easement. The third party may charge you a premium to enter into the deed and to consent to the works taking place on their land.
The third party would also likely expect you (as the party needing the easement) to cover their legal and other associated professional fees.
The third party may have their own specific requirements in relation to the deed and whether these can be accommodated will be a matter for tripartite negotiation.
Need help with easements?
If you require any assistance in relation to easements or any other aspect of development, please do get in touch with Amanjot Sidhu.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
