Utility easements: Issues of exclusivity

Utility easements: Issues of exclusivity

Published:

Author: Charlotte Walker

Developers keen to advance a housing project should be cautious when asked to sign-off a standard form of easement requested by a utility company.

The terms of such easements can create significant issues for the future management and disposal of a site. A developer must be aware of the practical implications of what it agrees to.

As a matter of practice in a modern development, utility companies will seek specific rights over development land to procure a range of rights and protections for the services they provide. This practice, coupled with deregulation of the utilities sector, has meant a significant increase in the number of easements that may be required over a site for the supply of services to the building plots.

Typically any service trench on a development site will contain pipes or cables laid by different companies and providing different services.

This is not a problem so long as the terms of installation by any one company do not effectively exclude the use of a service trench by another, but concerns have arisen because the standard terms of easement proposed by utility companies can have just such an effect.

For example, utility company A lays a gas pipe and requires a 3 metre wide easement which measures 1.5m either side of the centre line of the pipe. Utility company B will be laying electricity cables in the same trench and it wants an easement which is 2m wide, 1m either side of the centre line. Clearly the easements will encroach on one another. If the easement that A wants is granted, the developer would need A's permission before B could lay its cables, as B's cables will encroach on A's easement.

The terms of these easements can affect the build itself. Utility trenches are frequently laid in footpaths in close proximity to foundations. Where that is the case the foundations themselves may, and often do, encroach on the width of an easement sought by or granted to a utility company.

It is simply not practicable to expect a developer to seek consent from a utility company for permission to place foundations in respect of every plot which is adjacent to a utility trench but failure to take this into account when the rights are negotiated may leave the developer open to legal action. That may not be immediate but if service media should be damaged or interrupted, it is sure to follow.

In practice and with co-operation, these issues can be discussed and a workable solution found so that a utility company acquires the rights and protection it needs but future building and the laying of subsequent services are not inconvenienced.

In the main the standard deeds of easement prepared for utility companies may be issued or managed by their agency department or commercial agents and the technical team for the development company may be asked to approve them. Sometimes they receive no legal scrutiny at all. Without an awareness of the knock on effect that such typically extensive legal rights may entail it is all too easy to understand why they may be signed off in an effort to progress the build programme.

Developers must be mindful of what other rights it may need to grant which could encroach on a utility easement and which need to run in harmony with it when negotiating arrangements. A failure to do so will leave the developer at risk.