Underground, Overground, (Largely) Wombling Free...

MLP Example dig

In Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 WLR 588, 598 (CA), Steyn LJ observed “The more obvious the answer to a question is, the less authority there sometimes is on it.” Sometimes, the courts are asked to check and confirm whether the answer really is as obvious. Such a case is Mainline Pipelines Ltd. v. Phillips [2023] EWHC 2146 (Ch).

Mainline owns and operates a network of pipelines, which transports petrochemicals from Milford Haven to Birmingham, Manchester and beyond. Its title to the pipeline comprises squillions of individual leases, granted in standard form. One lease, granted in 1972, crossed a single field in Carmarthenshire, now vested in Mr. and Mrs. Phillips.

For years, Mainline had been seeking to exercise a right to enter the field to uncover the pipeline for inspection and repair. The primary reason given for refusing access was that there was no authority on whether the lease entitled Mainline to enter onto all land above the pipeline. On one level, the landowners were right: there was no authority, at least as far as Mainline was aware. Following an incident when Mr. Phillips advised Mainline’s contractors not to enter his land with a “choice of words was not as diplomatic as [they] may have been used to”, Mainline sought an injunction.

HH Judge Paul Matthews, sitting as a Judge of the High Court, held that the absence of any authority directly on point did not mean that the answer was unclear. Applying the usual principles of construction, implied terms, and the law of easements, he held that the Lease demised an underground “box”, through which the pipeline passed, and a leasehold easement, exercisable over all of the land which comprised the title from which the lease was originally granted. This easement entitled Mainline to enter and remain in order to inspect and repair the pipeline. The learned Judge further held that Mainline was entitled to exercise its rights under the easement without the landowners’ agreement and without making any prior payments to them.

Whilst it is right to say that the law relating to underground pipelines has some aspects which are recherché and best left to the nerds, this decision illustrates that, sometimes, the answer is to be determined by an application of well-understood principles to unusual circumstances.

Nic Taggart appeared for Mainline, instructed by Philip Sheppard of Veale Wasbrough Vizards LLP (who did all the work).

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