“The Surveyor referred to the question asked at a previous meeting of the Committee regarding the water main on the ground level in Church Street and he stated that he was now engaged in the taking of levels and in preparing a scheme for placing this main underground and for carrying out other incidental works relating to the supply of water”
“The Clerk referred to the recent discussion regarding the laying of the rising main underground which main was at present laid on the ground surface as a temporary wartime emergency measure. He stated that this rising main formed part of a large scheme which included the new borehole constructed in the Wharf, which scheme the Ministry had approved in principle.”
“You will no doubt recollect that in July 1944 an emergency arose in connection with water supplies in this district and a Notice was served upon you under Defence Regulations, intimating that the Council intended to lay a water main on the ground along the passage-way adjacent to your premises and to which you have the right of access in common with two other owners. The Council are now desirous of placing this water main under ground and will be glad to know that you will grant the necessary way-leave. I shall be glad to hear from you hereon at your early convenience.”
“Please carry on – Shall be very pleased when same is done.”
“I am relieved to hear from you that you are proposing to put the over ground water pipe underground & as far as I am concerned I shall be only too pleased to see it done.”
“In pursuance of the said agreement and in consideration of the covenants on the part of the [UDC] hereinafter contained the Grantors hereby grant unto the [UDC] in fee simple the right for the [UDC] and its servants workmen and licensees from time to time and at all times hereafter to lay construct maintain inspect and use a water main not exceeding 9 inches in diameter beneath the said land along the line and in the position indicated by a green line on the said plan annexed hereto and the like right from time to time to renew alter and remove the said water main or any part thereof and the right at all times to enter upon the said land and to excavate along the whole course of the said main as shown on the said plan for the purpose of exercising the rights hereinbefore granted the [UDC] making good any damage thereby done to the surface of the said land and restoring the same to the satisfaction of the Grantors Surveyor for the time being.”
“1.-(1) For the purposes of local government, England and Wales (exclusive of London) shall be divided into administrative counties and county boroughs, and administrative counties shall be divided into county districts, being either noncounty boroughs, urban districts or rural districts, and county boroughs and county districts shall consist of one or more parishes. [ … ] 157.-(1) A local authority may, for the purpose of any of their functions under this or any other public general Act, by agreement acquire, whether by way of purchase, lease or exchange, any land, whether situate within or without the area of the local authority. [ … ] 305. In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them— [ … ] ‘County district’ means a non-county borough, urban district or rural district; [ … ] ‘Land’ includes any interest in land and any easement or right in, to or over land; ‘Local authority’ means the council of a county, county borough, county district or rural parish; [ … ].” [ … ] ‘County district’ means a non-county borough, urban district or rural district; [ … ] ‘Land’ includes any interest in land and any easement or right in, to or over land; ‘Local authority’ means the council of a county, county borough, county district or rural parish; [ … ].”
“35. Before addressing the Ellenborough Park case directly, it is convenient first to summarise what, by the 1950s, were the well-established conditions for the recognition of a right as an easement. Writing in 1954, Dr Cheshire described the four essential characteristics as follows: i) There must be a dominant and a servient tenement; ii) The easement must accommodate the dominant tenement; iii) The dominant and servient owners must be different persons; iv) A right over land cannot amount to an easement, unless it is capable of forming the subjectmatter of a grant. Aspects of these requirements are better understood when it is appreciated that easements may be created, not only by express grant, but also by implied grant, upon the transfer of part of land formerly in single ownership under the rule in Wheeldon v Burrows(1879) 12 Ch D 31 , undersection 62 of the Law of Property Act 1925 and by prescription [ … ].”
“No-one doubts that in a properly drawn conveyance containing a grant or reservation of a right of way the proper and safe course is to identify therein, if necessary by reference to a plan, the dominant tenement for the benefit of which the easement is taken. That is the wise course. But the question we have to determine is whether that is essential to the validity of the easement or whether it is permissible to identify the dominant tenement by inferences from facts and circumstances which must have been known to the parties at the time of the conveyance. Mr. Seward [counsel for the purchaser of the ‘servient’ land] submits it is not permissible and he says, looking only at the body of the deed and the plan drawn thereon, that it is impossible to tell for the benefit of what land the easement was taken. He submits that in the absence of definition of the dominant tenement in the conveyance all that the vendor did was to reserve an easement in gross [ … ].”
“We, therefore, can find no support in authority or in text books for this broad principle advanced by Mr. Seward. Indeed, the authorities negative it. In our judgment, it is a question of the construction of the deed creating a right of way as to what is the dominant tenement for the benefit of which the right of way is granted and to which the right of way is appurtenant. In construing the deed the court is entitled to have evidence of all material facts at the time of the execution of the deed, so as to place the court in the situation of the parties. In this case it is quite plain that, when investigating title in 1948, the purchaser must have had before him the agreement of April 1, 1936, because that was part of the equitable title which was being conveyed by the company. It is then clear that the purchaser would know that the vendor and the company were the owners of the land and quarry immediately to the northwest of the land conveyed, as identified in the plan annexed to the particulars of claim. In addition, it is to be noted that the quarry is mentioned on the plan annexed to the conveyance and the right of way is expressed to include the right of quarrying. In those circumstances, it seems to us perfectly plain that in this case the dominant tenement was the land and quarry. The judge in a careful judgment reached the same conclusion and, in our judgment, he was perfectly correct.”
“[The plaintiffs] say that, at the most, this grant can only have been the grant of a personal licence. It is, they say, an attempt to create an easement in gross, and – and as to this there is no possible doubt – an easement in gross is a right unknown to our law. That being so, it may have had the effect that the licence which was granted by the grantor may not have been binding upon him, but, at any rate, it cannot have been binding on any successor of his. As I say, if this be in fact an easement in gross, it follows that it cannot be now binding upon the plaintiffs, and the question that I have to determine is whether or not it is an easement in gross. It is said that it is an easement in gross, because it is said – and said quite truly – that, in order to create a valid easement, there must be a dominant and servient tenement, and it is said that here there is no dominant tenement.”
“In my judgment, that is not sound. The undertaking in this case, which is now vested in the defendants, consists of corporeal hereditaments and incorporeal hereditaments, the corporeal hereditaments being the lands which the company acquired for the purpose of its object – that is to say, lands for the erection of reservoirs and similar purposes – and incorporeal hereditaments being the rights which it acquired in the lands of others, to lay pipes and for other purposes. The undertaking, in my judgment, being composed of corporeal and incorporeal hereditaments, is capable of being the dominant tenement in respect of such a grant as this.”
“In the present case, in my judgment, it is plain that this easement was one which was intended to be, and was capable of being, used and exercised in connection with the undertaking of the Weardale Company, and, if that be so, it must follow, in my judgment, that this was an easement which is capable of being created, not an easement in gross, and one which the then owner of the property could validly grant, and, having validly granted it, as he did, it is a grant which is binding upon the other persons on to whose land the property comes.”
“The property in the mains and pipes, in the chattels themselves, is clearly vested in the plaintiff corporation. But what is the right or interest of the plaintiff corporation in respect of the land, that is (a) in respect of the space or area occupied by the pipes, (b) in respect of the subterranean strip of land on which the pipes rest? Such right or interest must be one or other of the following: the plaintiff corporation may be owners or proprietors, they may be tenants, they may have an easement or some other incorporeal right analogous to an easement, they may be licensees. Having determined what that right or interest is the plaintiff corporation will be entitled to prosecute such claims as flow therefrom according to the general law and do not therefore arise by reason only of the Sanitary Acts. The answer to the problem must depend upon the true interpretation and effect of the relevant statutory powers exercised to the laying and maintenance of the pipes by the plaintiff corporation or their predecessors as gas undertakers. And, since all the pipes in question were laid under public highways these powers are to be found in s. 6 of the Gas Works Clauses Act, 1847, incorporated with all the relevant private Acts, or in provisions of those Acts which may for present purposes be taken to be similar to those of s. 6 of the Act of 1847.”
“In the circumstances and bearing in mind the general rule that no greater rights or interests should be treated as conferred on the undertakers than are necessary for the fulfilment of the object of the statute, it seems to me reasonably clear as a matter of the construction of s 6 of the Act of 1847, that the terms of the section are not intended to confer and are not apt to confer on the undertakers any right of ownership or proprietorship of the land affected.”
“Equally in my judgment is the language of the section inappropriate to create in favour of the undertakers any tenancy or any easement or interest analogous to an easement. It is true that the rights of the undertakers are the creatures of statute, and that it is within the competence of Parliament to confer or create interests without regard to those incidents which are regarded as requisite to an agreement inter partes. Thus, Parliament may create an easement in gross as it may, I assume, create a tenancy without provision for the payment of rent and notwithstanding the absence of any term certain. But the absence of the incidents ordinarily appropriate to the existence of a tenancy or of an easement is, at the least, an important consideration for the determination of the question whether on the true construction of the statute the creation of any such interest was intended. It is indeed somewhat tempting to conclude that some right in the nature of an easement ought to be inferred; and I have in mind the reference to a wayleave in the speech of Lord Atkinson in New Moss Colliery Co. v. Manchester Corporation. But in my judgment these considerations are insufficient to give to the language of s. 6 of the Act of 1847 a meaning and intent which that language – particularly in the light of the contrasts to which I have already referred – cannot naturally or properly bear. Reference was made in the course of the argument to that species of property commonly known as flying freeholds. It is sufficient in my view to say that there is no real analogy between flying freeholds and pipes or cables laid under special Acts; and I do not think that any assistance is obtained towards the solution of the problem of the latter by consideration of the former. It follows that, if I am right so far, the interest of the undertakers must be that of licensees without any title, legal or equitable, in the land itself.”
“It seems to us clear that the rights which a riparian proprietor has with respect of the water are entirely derived from his possession of land abutting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor but not so as to sue other persons in his own name for an infringement of them.”
“The dominant and servient tenements have no apparent connexion with one another. The abstraction of the water from the stream took place at a spot situated on other land than that now called the dominant tenement, and in no sort of way affected the enjoyment of the water at what is now called the servient tenement. If the waterworks could be considered a dominant tenement every house in Stockport to which the water flowed through pipes might equally be so. And as in modern times water is often conveyed many miles underground in pipes for the supply of large towns, the dominant and servient tenements might not only be many miles apart, but have no other connexion with each other than the artificial one created by miles of pipes.”
“15. In his discussion on the point in Sunningwell, Lord Hoffmann began by explaining that ‘[a]ny legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment’, and went on to explain that a combination of statutory and common law had resulted in such enjoyment having to be twenty years ‘nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner’. He went on to explain that each of ‘these three vitiating circumstances’ would amount to ‘a reason why it would not have been reasonable to expect the owner to resist the exercise of the right’, namely, ‘in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period’.”
“17. In relation to the acquisition of easements by prescription, the law is correctly stated in Gale on Easements (19th edition, 2012), para 4-115: ‘The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is 'as of right'; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not 'as of right.' Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence.’ 18. The concept of acquiescence in this context was explained in the opinion delivered by Fry J (with which Lord Penzance expressed himself as being ‘in entire accord’ at p 803), in Dalton v Henry Angus & Co(1881) 6 App Cas 740 , 774, where he said: ‘… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain…’.” ‘The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is 'as of right'; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not 'as of right.' Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence.’ ‘… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain…’.”
“20. In the present case, the Council’s argument is that it acquired and has always held the Field pursuant to section 12(1) of the 1985 Act and its statutory predecessors, so the Field has been held for public recreational purposes; consequently, members of the public have always had the statutory right to use the Field for recreational purposes, and, accordingly, there can be no question of any ‘inhabitants of the locality’ having indulged in ‘lawful sports and pastimes’ ‘as of right’, as they have done so ‘of right’ or ‘by right’. In other words, the argument is that members of the public have been using the Field for recreational purposes lawfully or precario, and the 20-year period referred to in section 15(2) of the 2006 Act has not even started to run – and indeed it could not do so unless and until the Council lawfully ceased to hold the Field under section 12(1) of the 1985 Act. 21. In my judgment, this argument is as compelling as it is simple. So long as land is held under a provision such as section 12(1) of the 1985 Act, it appears to me that members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land ‘by right’ and not as trespassers, so that no question of user ‘as of right’ can arise. In Sunningwell at pp 352H-353A, Lord Hoffmann indicated that whether user was ‘as of right’ should be judged by ‘how the matter would have appeared to the owner of the land’, a question which must, I should add, be assessed objectively. In the present case, it is, I think, plain that a reasonable local authority in the position of the Council would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities, given that the Field was being held and maintained by the Council for public recreation pursuant to section 12(1) of the 1985 Act and its statutory predecessors. 22. It is true that this case does not involve the grant of a right in private law, which is the normal issue where the question whether a use is precario arises. Indeed, the fact that the right alleged in this case is not a conventional private law right, but a public law right, was rightly acknowledged by Ms Lieven. Thus, it is a right principally enforceable by public rather than by private law proceedings. It is also a right which is clearly conditional on the Council continuing to devote the Field to the purpose identified in section 12(1) of the 1985 Act (and it is unnecessary for present purposes to go into the question of what steps the Council would have to take to remove the Field from the ambit of the section). Accordingly, the right alleged by the Council to be enjoyed by members of the public over the Field is not precisely analogous to a public or private right of way. However, I do not see any reason in terms of legal principle or public policy why that should make a difference. The basic point is that members of the public are entitled to go onto and use the land – provided they use it for the stipulated purpose in section 12(1), namely for recreation, and that they do so in a lawful manner. [ … ] 27. It was suggested by Mr Edwards QC in his argument for Ms Barkas that, even if members of the public were not trespassers, they were nonetheless not licensees or otherwise lawfully present when they were on the Field. I have considerable difficulty with that submission. As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law), then they are permitted to be there, and if they have no right to be there, then they are trespassers. I cannot see how someone could have the right to be on the land and yet be a trespasser (save, I suppose, where a person comes on the land for a lawful purpose and then carries out some unlawful use). In other words a ‘tolerated trespasser’ is still a trespasser. 28. Furthermore, the fact that the landowner knows that a trespasser is on the land and does nothing about it does not alter the legal status of the trespasser. As Fry J explained, acquiescence in the trespass, which in this area of law simply means passive toleration as is explained in Gale (or, in the language of land covenants, suffering), does not stop it being trespass. This point was well made by Dillon LJ in Mills v Silver[1991] Ch 271 , 279-280, where he pointed out that ‘there cannot be [a] principle of law’ that ‘no prescriptive right can be acquired if the user … has been tolerated without objection by the servient owner’ as it would be ‘fundamentally inconsistent with the whole notion of acquisition of rights by prescription.’ Accordingly, as he added at p 281, ‘mere acquiescence in or tolerance of the user … cannot prevent the user being user as of right for purposes of prescription.’ 29. Thus, if a trespass has continued for a number of years, then the fact that it has been acquiesced in (or passively tolerated or suffered) by the landowner will not prevent the landowner claiming that it has been and is unlawful, and seeking damages in respect of it (subject to the constraints of theLimitation Act 1980 ). For the same reason, if such a trespass has continued for 20 years and was otherwise as of right, it will be capable of giving rise to a prescriptive right. On the other hand, if the landowner has in some way actually communicated agreement to what would otherwise be a trespass, whether or not gratuitously, then he cannot claim it has been or is unlawful – at least until he lawfully withdraws his agreement to it. For the same reason, even if such an agreed arrangement had continued for 20 years, there can be no question of it giving rise to a prescriptive right because it would clearly have been precario, and therefore ‘by right’.”
“The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right – in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.”
“But it hasbeen said that if the enjoyment were shewn to have originated in mistake, however adverse it may have been, that is against the presumption, and that the learned Judge misled the jury in this respect: but no facts appear to warrant this objection, otherwise it might be very material to be considered. For if in exercising the right of way from time to time it had appeared that the party had asserted his right to be grounded on the award, though it were exercised ever so adversely, I do not know how the jury would be warranted in referring it to any other ground than what the party himself insisted on at the time.”
“It is plain that if we refer the user to any other right than the one in respect of which it was actually exercised, we might be doing the greatest injustice. For the lord might allow the inhabitants of cottages to exercise the right as inhabitants, knowing that it was a right which could not be established in point of law, and which there was no necessity to interrupt; and he might afterwards be bound by his own interruption, because another right was acquired.”
“I am not prepared to make a presumption not in accordance with rights claimed. Long user not explained may justify the Court, and, indeed, in some circumstances, may almost compel the Court, to presume what is necessary to give validity to the usage. When, however, the right claimed cannot be established on the ground claimed, an incidental portion of the right claimed cannot be established on the mere ground of long usage. In other words, a presumption to support a right claimed may be reasonable, but a presumption to support a mere fragment of a right claimed and never exercised apart from the right claimed is a wholly different proposition.”
“A man cannot prescribe contrary to, or in manner inconsistent with, the title which he produces, and on which he relies: Labrador Co vReg.(1) If his enjoyment originated in mistake and he asserted his right to be grounded, say, on an award which did not support it, then however adversely the right may have been exercised, it cannot for purposes of presumption be referred to any other ground than what he himself insisted on at the time: Campbell vWilson.(2) The passage quoted in the judgment in Lord Rivers vAdams (3) from the judgment of Lawrence J. in Campbell vWilson (4) is, I think, directly in point.”
“This is no question of estoppel. Part of the evidence of the user consists of the title asserted throughout by those who benefited by the user, and that part is enough to preclude any presumption.”
“Reliance was also placed on behalf of the defendants on certain authorities, namely, Attorney-General v. Horner (No. 2)[1913] 2 Ch. 140 ; Campbell v. Wilson (1803) 3 East 294 and Rivers v. Adams (1878) 3 Ex.D. 361. These cases appear to me to establish that, where a right has been asserted and acquiesced in on a particular basis, the claimant cannot thereafter set up his claim on any other ground. They do not however establish that, where a claimant asserts a right in the mere belief (mistaken) that such right has been conferred when it has not, this negatives any claim by prescription, be it by common law, the Act of 1832 or lost modern grant. There are certain passages in the judgments in such cases which suggest that a user cannot be adverse if it is believed mistakenly to be rightful, but this cannot be right. The true position, as exemplified in the Chamber Colliery case, 32 Ch.D. 549, is that user in an asserted but mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be made the foundation of a grant of unlimited duration. To go as far as saying that no user based on a mistaken belief in a right could found a claim to prescription would be to say that the law will only presume a grant or allow a claim to prescription at common law in favour of someone who is aware that he is a wrongdoer.” 119.Ralph Gibson LJ said (at 178E-G): “For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. The requirement that user be ‘as of right’ means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner's permission. If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right. The fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.”
“119. A local authority who supply, or are about to supply, water under this Act shall have the like powers and duties and be subject to the like restrictions in respect of the laying and maintenance of water mains of within or without their district, as, under the provisions of Part II of this Act, they have and are subject to in respect of the construction and maintenance of public sewers within or without their district, as the case may be.”
“158.-(1) Subject to the following provisions of this section, to section 162(9) below and to the provisions of Chapter III of this Part, every relevant undertaker shall, for the purpose of carrying out its functions, have power— (a) to lay a relevant pipe in, under or over any street and to keep that pipe there; (b) to inspect, maintain, adjust, repair or alter any relevant pipe which is in, under or over any street; and (c) to carry out any works requisite for, or incidental to, the purposes of any works falling within paragraph (a) or (b) above, including for those purposes the following kinds of works, that is to say— (i) breaking up or opening a street; (ii) tunnelling or boring under a street; (iii) breaking up or opening a sewer, drain or tunnel; (iv) moving or removing earth and other materials. [ … ] (4) A stopcock fitted to any service pipe in a street shall be situated as near as reasonably practicable to the boundary of the street; and a water undertaker shall consult with the highway authority concerned before determining in accordance with this subsection where to fit a stopcock in a highway. (5) Where a water undertaker exercises its powers under this section for the purpose of carrying out works of maintenance, repair or renewal in relation to a service pipe belonging to a person other than the undertaker, the undertaker shall be entitled to recover from the occupier of the premises supplied by means of that pipe the expenses reasonably incurred by that undertaker in so exercising that power. [ … ] (7) Subject to section 161(7) below, in this section references to a relevant pipe shall be construed— (a) in relation to a water undertaker, as references to a water main (including a trunk main [ … ]), resource main, discharge pipe or service pipe; and [ … ]. 159.-(1) Subject to the following provisions of this section, to section 162(9) below and to the provisions of Chapter III of this Part, every relevant undertaker shall, for the purpose of carrying out its functions, have power— (a) to lay a relevant pipe (whether above or below the surface) in any land which is not in, under or over a street and to keep that pipe there; (b) to inspect, maintain, adjust, repair or alter any relevant pipe which is in any such land; (c) to carry out any works requisite for, or incidental to, the purposes of any works falling within paragraph (a) or (b) above. (2) Nothing in subsection (1) above shall authorise a water undertaker to lay a service pipe in, on or over any land except where— (a) there is already a service pipe where that pipe is to be laid; or (b) the undertaker is required to lay the pipe in, on or over that land by virtue of any of subsections (3) to (5) of section 46 above. (3) The power conferred by virtue of paragraph (b) of subsection (1) above, and the power conferred in relation to that paragraph by virtue of paragraph (c) of that subsection shall be exercisable in relation to a service pipe irrespective of the person to whom the pipe belongs; but expenses incurred in exercising those powers in relation to any pipe shall be recoverable from the person to whom the pipe belongs only if and to the extent that that person has agreed to pay them. (4) The powers conferred by this section shall be exercisable only after reasonable notice of the proposed exercise of the power has been given to the owner and to the occupier of the land where the power is to be exercised. (5) Subject to subsection (6) below, in relation to any exercise of the powers conferred by this section for the purpose of laying or altering a relevant pipe, the minimum period that is capable of constituting reasonable notice for the purposes of subsection (4) above shall be deemed— (a) where the power is exercised for the purpose of laying a relevant pipe otherwise than in substitution for an existing pipe of the same description, to be three months; and (b) where the power is exercised for the purpose of altering an existing pipe, to be forty-two days. (6) Subsection (5) above shall not apply in the case of any notice given with respect to the exercise of any power in an emergency or for the purpose of— (a) laying or altering a service pipe; or (b) complying with a duty imposed under section 41 or 98 above. (7) Subject to subsection (2) above, in this section “relevant pipe” has the same meaning as in section 158 above [(reading references there to subsection (1) as references to subsection (1) of this section)]. [ … ] 185.-(1) Where any relevant pipe or other apparatus is for the time being kept installed by a relevant undertaker on, under or over any land, any person with an interest in that land or in adjacent land may by notice to the undertaker require the undertaker to alter or remove that pipe or apparatus on the ground that the alteration or removal of that pipe or apparatus is necessary to enable that person to carry out a proposed improvement of the land in which he has an interest. (2) Subject to subsections (3) and (4) below, where a notice is served on a relevant undertaker under subsection (1) above, it shall be the duty of the undertaker to comply with the requirement contained in the notice except to the extent that that requirement is unreasonable. (3) Nothing in this section shall require a relevant undertaker to alter or remove any pipe or apparatus which is kept installed in, under or over any street. [ … ] (5) Where a relevant undertaker carries out any works under this section by virtue of a notice having been served by any person under subsection (1) above, [the person serving the notice is liable to pay to the undertaker such charges as the undertaker may impose in accordance with charging rules]. […] (9) In this section— [ … ] “relevant pipe” has the same meaning as in section 158 above. [ … ] 219.-(1) In this Act, except in so far as the context otherwise requires— [ … ] “street” has [ … ] the same meaning as in Part III of the New Roads and Street Works 1991; [ … ].” (a) to lay a relevant pipe in, under or over any street and to keep that pipe there; (b) to inspect, maintain, adjust, repair or alter any relevant pipe which is in, under or over any street; and (c) to carry out any works requisite for, or incidental to, the purposes of any works falling within paragraph (a) or (b) above, including for those purposes the following kinds of works, that is to say— (i) breaking up or opening a street; (ii) tunnelling or boring under a street; (iii) breaking up or opening a sewer, drain or tunnel; (iv) moving or removing earth and other materials. [ … ] (a) in relation to a water undertaker, as references to a water main (including a trunk main [ … ]), resource main, discharge pipe or service pipe; and [ … ]. (a) to lay a relevant pipe (whether above or below the surface) in any land which is not in, under or over a street and to keep that pipe there; (b) to inspect, maintain, adjust, repair or alter any relevant pipe which is in any such land; (c) to carry out any works requisite for, or incidental to, the purposes of any works falling within paragraph (a) or (b) above. (a) there is already a service pipe where that pipe is to be laid; or (b) the undertaker is required to lay the pipe in, on or over that land by virtue of any of subsections (3) to (5) of section 46 above. (a) where the power is exercised for the purpose of laying a relevant pipe otherwise than in substitution for an existing pipe of the same description, to be three months; and (b) where the power is exercised for the purpose of altering an existing pipe, to be forty-two days. (a) laying or altering a service pipe; or (b) complying with a duty imposed under section 41 or 98 above. [ … ] “street” has [ … ] the same meaning as in Part III of the New Roads and Street Works 1991; [ … ].”
“The maxim, Omnia praesumuntur rite esse acta, is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observances proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probably that which was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.”