The short answer is not necessarily, as sadly held in the recent case of William Old v Arya (2009).
In a nutshell :-
- William Old sold land to Arya. It had an easement that let it go on Arya's land to pass
utilities through it.
- EDF Energy said that it would lay the cables only if Arya agreed to join in a form of
easement to EDF. Arya declined. This left the William Old scheme without electricity.
- William Old took action saying that Arya should execute the Deed, because his actions had
taken away the benefit of its easement. The High Court disagreed. It found that Arya could not be
forced into a contract with EDF.
What should developers do to ensure that they can access the services which they need? The
transfer to the developer should contain a covenant by the servient landowner to enter into a
direct Deed of Grant to the relevant utility company if required . As this would be a positive
covenant, ideally it is also necessary to take a covenant from the servient landowner that on a
sale of the servient land it will procure that its successor enters into a direct covenant with the
developer in the same terms - such covenant to be protected by a restriction on the title to the
servient land. Also bear in mind that some utilities (particularly sewers) require protective
strips, which may go beyond the extent of an express private easement, so, again, this should be
covered in the private grant.