9. MECHANISMS COMPLEMENTARY TO THE GRANT OF PERMITS

I - SOUTH AFRICA - National Water Act, 1998

Schedule 2 - Procedural matters regarding servitudes

1) A person who intends to claim a servitude or an amendment of a servitude under the Act must give the owner of the land which will be subject to the servitude written notice of his or her claim.

2) Where a claimant is not the owner of the land in favour of which the servitude is claimed, the claimant must give the owner written notice of the claimant's claim.

3) The notice must include details of at least the following, where relevant:

a) the entitlement of the claimant to the use of the water;

b) a description of the land which will be subject to the servitude;

c) whether the servitude claimed is a personal or a praedial servitude;

d) in the case of a personal servitude, the name, identity number or registration number (if applicable) of the person in whose favour the servitude is claimed;

e) in the case of a praedial servitude, a description of the land in favour of which the servitude is claimed;

f) the likely impact of the servitude on the land or its use;

g) in the case of a servitude of aqueduct, the route along which the water is to be led over the land which will be subject to the servitude and other affected land;

h) in the case of a servitude of submersion, where the water will be stored and the area that will be submerged;

i) the nature and locality of any proposed waterwork, including any road or other structure, which will reduce the loss and inconvenience to the owner or occupier of the land which will be subject to the servitude, as a result of the servitude;

j) how and when maintenance of the proposed waterwork is likely to be carried out;

k) the nature, quantity and situation of any materials required from the land which will be subject to the servitude for the purpose of constructing any proposed waterwork;

l) the land reasonably required during the construction period for -

i) construction camps;
ii) accommodating people;
iii) workshops; or
iv) storage purposes;

m) the extent and location of any land reasonably required for construction, operating and maintaining a proposed waterwork on the land which will be subject to the servitude; and

n) the compensation offered.

4) A plan depicting the location of the proposed waterworks on the land which will be subject to the servitude must be attached to the notice.

5) When a person gives a notice of a claim for a servitude or for an amendment of a servitude, that person must also send, by registered post, a copy of the notice to-

a) the lessee of the land;

b) the national, provincial or local government authority responsible for controlling, maintaining or repairing a road across which the claimant intends constructing a waterwork in terms of the servitude or amendment; and

c) every person who, from a perusal of -

i) the title deeds of the land;
ii) the records of the Registrar of Mining Titles; or
iii) the records of any other government office which records prospecting or mining rights,

appears to have any interest in the land which may be negatively affected by the servitude, if the whereabouts of the person can be readily ascertained.

6) A notice under item 1 or 2 may be amended as a result of -

a) the claimant exercising his or her rights under section 128 of the Act; or

b) objections to the notice by the owner of the land subject to the servitude or the owner of the land in favour of which the servitude is claimed.

7) An amended notice must be dealt with in the same way as the original notice.

8) A claimant may, not earlier than 14 days and not later than 90 days after the notices required in terms of this Schedule have been given, apply to the High Court for the award of a servitude claimed in terms of the procedure set out in this Schedule and the High Court may make such order as it deems fit.

II - JAMAICA - Water resources regulations, 1995

17. (1) The owner of land over which an easement was constituted by agreement may not terminate the easement unless - -

(a) he serves a notice upon the person to whom the easement was granted requiring him within thirty days of the notice, to show cause to the Authority why the easement should not be terminated and such person fails to show any or sufficient cause; and

(b) not later than the date of service of the notice referred to in paragraph (a) he notifies the Authority of his intention to terminate the easement and submits to the Authority a copy of such notice.

(2) An easement constituted under section 27 of the Act shall, if not earlier terminated, expire with the expiration of the licence in relation to which it was granted. ...

26. Registration of recording of easement

An easement constituted under the Act by agreement shall - -

(a) where the land over or in favour of which the easement was created is under the operation of the Registration of titles Act, be registered by the Registrar of Titles; and

(b) where such land as aforesaid is not under the operation of the Registration of titles Act, be recorded by the Deputy Keeper of the Records, on production of the agreement or, as the case may be, order relating to the easement or a copy of such agreement and a diagram prepared by the Director of surveys or any commissioned land surveyor showing the position of the easement.

III - ETHIOPIA - A Proclamation to Provide for the Utilization of Water Resources, No. 92/1994

12. Servitude

(1) a permit holder may, with the approval of the Appropriate Authority, construct water works on land under the possession of another person for the purpose of abstracting the required water from its source;

(2) the possessor of the land encumbered pursuant to sub-Article (1) of this Article, is entitled to adequate compensation from the permit holder.

(3) the provision of sub-Article (1) of this Article shall not apply to land under peasant holding unless the peasants themselves have given their consent and provided that the construction of the water work does not in any way entail eviction of the peasants.

IV - UGANDA - Water Resources Regulations, 1998

25. Easements

(1) An application for an easement under section 36 of the Statute shall be in Form G in the Eighth Schedule to these regulations and shall be accompanied by the appropriate application fee specified in the Second Schedule^[9] to these regulations.

(2) The Director shall, within fourteen days of receipt of the application, give written notice of the application to any person who has an interest in the land over which the easement is being sought.

(3) The Director shall, in the notice referred to under subregulation (2) of this regulation, invite the affected person to,

(a) inspect the application at the Director's office;
(b) make any objection or written submission to the Director within one month on receipt of the notice;
(c) indicate whether he or she wishes to be heard in person by the Director.

(4) The Director may, on hearing any objection under paragraph (b) or submission under paragraph (c) of subregulation (3) grant a Certificate of Easement in Form G2 of the Eighth Schedule.

Eighth Schedule - Form G - Application for an easement - See Appendix I, page 337.

Form G2 - Certificate of Easement - See Appendix I, page 339.

V - KENYA - The Water Act, 2002

Third Schedule - Easements

1. Encumbrances

The acquisition of an easement in accordance with this Schedule shall not affect the burden or benefit of any encumbrance on the land existing at the date of the acquisition or the liability or right of any person in respect thereof.

2. Easement includes right of access

(1) An easement shall include the right of access, along a route to be approved by the Authority after consultation with the owner, to any piece of land contiguous to the water of the permit holder in so far as may be necessary for the purpose of constructing, inspecting, maintaining, operating or repairing the works of the permit holder and for any purpose necessary for the effective enjoyment of the easement.

(2) The permit holder shall, however, give reasonable notice to the occupier of the land over which the easement is held of his intention to enter the land for any of the purposes mentioned in this paragraph.

3. Permit holder must avoid flooding lands and maintain canal satisfactorily

A permit holder who has acquired an easement which authorises the construction of a canal -

(a) shall take and maintain adequate measures for preventing the introduction into the canal of a greater quantity of Water than that which the canal is capable of carrying; and

(b) shall not cause damage to any land in respect of which the easement is held by permitting the accumulation of weeds. silt or any other obstruction or nuisance which might cause flooding, or any other damage whatsoever.

4. Damage caused by works of permit holder

(1) If damage is caused, as the result of works of a permit holder, to the land over which the easement is held, the landholder may require the permit holder to construct such additional works as are necessary, in the opinion of the Authority, to prevent such damage or any recurrence thereof and the Authority may by order require the permit holder to construct such additional works at his sole expense.

(2) If the permit holder fails to comply with an order of the Authority given under this paragraph, the Authority may cancel his permit.

5. Permit holder to construct works to enable landholder to enjoy his existing works if interfered with

(1) A permit holder who has acquired an easement for the construction of works on another landholder's land which prevents the landholder passing freely over or on his land as he could before, or interferes with his existing works, structures or devices upon his land, shall, at his own expense, construct and maintain in repair, to the satisfaction of the Authority and under such conditions as it may prescribe -

(a) such bridges and other structures and devices as will make communication safe and convenient; or

(b) such works, structures or devices as the Authority considers necessary to enable the landholder effectually to enjoy the use of any work, structure or device interfered with.

(2) Any permit holder who fails to comply with the provisions of this paragraph shall be guilty of an offence.

6. Permit holder desiring easement to serve notice on landholder

(1) A permit holder claiming an easement under this Act shall serve a notice on the holder of the land on, over or through which he desires to acquire the easement, and shall in such notice state the following particulars, and such further particulars as may be required by rules made under this Act

(a) a description of the proposed works and a statement of their use:

(b) a statement of the quantity or discharge of water, if any, to be diverted or dealt with;

(c) a map showing clearly the nature and locality of any works or area of swamp or land to be reclaimed. if the easement is for reclamation of a swamp or lands:

(d) a statement of the area of the land (if any) which is or will be

(i) occupied by the works:

(ii) flooded as a result of the works;

(iii) required for the purposes of inspection and maintenance of the works;

(iv) required for the excavation or co\lection of material for the works, or for the deposit of soil or material derived from the works;

(v) required for a road or roads to obtain access to the works; or

(vi) required for the control or prevention of pollution of the water to be used; and

(e) a statement of the compensation which is offered and the period of time during which the permit holder wishes to enjoy the easement.

(2) A copy of the notice shall be sent by the permit holder to the Authority.

7. Consent of landholder to easement

If the landholder agrees to the claim for an easement, either as originally proposed or as modified by agreement, the permit holder

(a) shall embody the particulars and other matters pertaining thereto in a deed or other instrument suitable for registration; and

(b) after its execution by the parties concerned, shall send two copies of such deed or other instrument, certified by the Registrar of Titles, to the Authority.

8. Application where landholder does not consent

If the landholder does not, within two months after the service of a notice under this Schedule, agree to the claim for an easement or to any other matter necessary for an easement; the permit holder may apply to the Authority, in the prescribed manner, for an easement, and shall serve notice of such application upon the landholder.

9. Determination of application for easement

(1) The Authority may either dismiss the claim for an easement or grant the claim with or without modification and subject to such conditions, and to the payment of such compensation, as to the Autl,1ority seems just.

(2) The Authority shall notify the permit holder and the landholder of its decision.

(3) When the claim for an easement has been granted. the permit holder shall embody the particulars and other matters pertaining to an easement granted under subparagraph (1) of this paragraph in a deed or other instrument suitable for registration, and shall tender the deed or instrument, together with the amount of any award of compensation made, to the landholder for execution.

(4) If the landholder fails within such time as may be specified by the Authority to execute and deliver the deed or instrument to the permit holder, the Authority may do so on his behalf, and thereupon the deed or instrument shall have the same effect as if it had been executed by the landholder.

(5) The Registrar of Titles shall register the deed or instrument against the title affected, and two copies of such deed or instruments certified by the Registrar of Titles, shall be sent by the permit holder to the Authority.

(6) Where an appeal has been lodged under subparagraph (2) of this paragraph, no action shall be taken under subparagraphs (3), (4) or (5) of this paragraph until the appeal has been decided.

10. Lapsing of easement

(1) An easement acquired under this Act shall lapse:

(a) if the works authorised are not completed and the water is not utilized within one year from the date of acquiring the easement or within such further period as the Authority may determine; or

(b) if, at any time, substantial use is not made of the permit in accordance with the terms of the permit for a continuous period of two years, or such longer period as the Authority may, from time to time, in any particular case, determine.

(2) Upon the lapse of an easement, the Authority shal1 notify the Registrar of Titles, who shall, without charge, cancel the registration of the easement against the title affected.

11. Permit holder to keep works in state of repair

(1) If any work constructed on the land of a person other than the permit holder is out of repair or requiring cleaning, the permit holder or his agent shall. if required in writing by the landholder to repair or clean such work, carry out such requirements within a reasonable time.

(2) If the permit holder fails so to do, the landholder may cause to be done all things necessary for carrying out such repairs or cleaning, and may recover the cost thereof from the permit holder in any court of competent jurisdiction.

(3) Such repairs or cleaning shall not be unreasonably demanded. and. in the event of a dispute between the parties, the Authority shall decide what constitutes reasonable repairs or cleaning.

(4) A permit holder who allows or suffers any such works to fall into disrepair or, in the opinion of the Authority, to be in such a state as to require cleaning shall be liable for all damage which may arise as a consequence.

14. Landholder may demand and obtain use of works

(1) Any landholder on. over or through whose lands an easement has been applied for or been granted may, by application to the Authority either before or after the construction of any works, apply for a permit to make use of such works or the proposed works for the diversion, abstraction, storage or use of whatever water he may become entitled to divert, store or use under this Act.

(2) Before such a permit or authorisation is issued by the Authority

(a) the landholder shall prove, to the satisfaction of the Authority, that the works of the permit holder can be satisfactorily used for the purpose of the landholder and without material detriment to the permit holder; and

(b) such proportionate cost of the works shall be paid by the landholder to the permit holder who constructed or is constructing the works as may be agreed on between the parties or, failing agreement, as may be determined by the Water Appeal Board.

(3) The permit holder may require the landholder to enter into an agreement to continue to pay the proportionate cost of maintaining the portion of the works made use of, until either party has in writing surrendered such right of user and, in the event of disagreement, the matter shall be decided by the Water Appeal Board.

(4) If such works require modification to enable the landholder to enjoy their use, he shall, unless the matter is otherwise agreed, pay to the permit holder

(a) the entire cost of modifying them in the manner approved by the Authority; and

(b) the cost of constructing and maintaining such devices for apportioning the quantities of water as the Authority may prescribe or approve.

(5) When it is proved to the satisfaction of the Authority that altered conditions have rendered revision of such rate of payment. just and equitable, the Authority shall inform the parties. concerned, and, failing agreement between such parties on any such revision of the rate of payment, the matter shall be referred to and decided by the Water Appeal Board,

15. Landholder may use land occupied by excavated material for own purpose

When works have been excavated by a permit holder on another person's land -

(a) any land used solely for the deposit of excavated material from the works executed shall, notwithstanding the payment of compensation and. except in the case of an easement for drainage or reclamation, remain available to the landholder for his own purposes; and

(b) the landholder may remove such excavated material: Provided that no damage shall be done to the works of the permit holder, nor shall the works be obstructed or interfered with by such removal.

16. Easement to be registered

The deed or other instrument creating an easement acquired under this Schedule shall be registered against the title affected, and a plan, which shall be approved and signed by, or by the authority of, the Director of Surveys, shall be attached to each document granting the easement.

17. Determination of easement

(1) An easement acquired under this Act shall determine if and when the permit for the exercise of rights under which the easement has been acquired is cancelled as provided for in this Act.

(2) On the determination of the relevant permit, any works constructed by the permit holder on the lands of another person shall, where the permit 110lder is the sole permit holder, become the property of such other person unless removed by the permit holder

(a) voluntarily, within two years from the date of such determination; or
(b) at the order of the Authority at the request of the other person.

18. Registration of determination or variation of an easement

On the determination or variation of an easement, the Authority shall notify the landholder over whose land the easement was granted, and the Registrar of Titles and the landholder concerned may, at the expense of the person in whose name the easement is registered, take such action as is necessary to cause his title to be freed from the easement or to record the variation, as the case may require.