Risegold Ltd v Escala Ltd (2008)
It was a matter of fact and degree whether a proposed development came within the scope of a clause granting access for "rebuilding or renewal". Where comparison of a claimant's existing buildings with its proposed development demonstrated that the latter was not just a "rebuilding or renewal", and where there was abundant evidence in the clause that the claimant's right to enter the defendant's land for those purposes was intended to be strictly limited, the claimant was not entitled to access.
The applicant (R) applied for a declaration that it was entitled to enter adjacent land belonging to the defendants (E) for "rebuilding or renewal" of its property pursuant to an express grant in transfers of land. R had bought its freehold property with planning permission to demolish an existing single-story structure and build a block of commercial units and 24 flats. R intended to fit the construction within the terms of the applicable easement by the use of modern building techniques. To do that, R needed to intrude into the space on all four sides of the new building, including the side where there was a yard belonging to E. The transfers of title to R and to E had taken place within days of each other and the grant or reservation of benefit was in all material respects identical in each transfer. The issue that arose for decision was whether the relevant clause in the grants of title granted access for the purpose sought by R. E submitted that the proposed works were not a rebuilding or renewal, but a comprehensive redevelopment of the property, which was not a permitted purpose. R submitted that the term "renew" should be broadly interpreted, as in "urban renewal".
(1) There was no restrictive covenant against development. Whether R was entitled to the right of access did not depend on the extent of the user required, but on the purpose for which the right had been granted. There should be no presumption in favour of either party and the words of the clause should be given their ordinary meaning. It could not be assumed that urban renewal had been in mind when the clause was drafted. With regard to "rebuilding", it was a question of fact whether a proposed development came within the scope of the right in question as properly interpreted. The term "rebuild" allowed a new building to be in some ways different in perhaps every respect from the original, yet still be identifiable as substantially a rebuilding of the original; it was a matter of fact and degree, Walker's Settled Estate, Re (1894) 1 Ch 189 Ch D and Low v Innes 46 ER 929 Ct of Chancery considered. (2) Within the clause there was abundant internal evidence that the scope of R's right was intended to be strictly limited and to derogate to the minimum possible extent from the enjoyment of the land by the servient owner. That evidence, with the normal meaning of the words led to the conclusion that E's submission was to be accepted. The court was not being asked to define the point at which it could be objectively determined when the proposed development ceased to be a rebuilding and became a redevelopment by the construction of something different. All that was required was to compare photographs of the existing buildings with the artist's impression of the one projected, and the conclusion was that the latter was neither a rebuilding nor a renewal.
Judgment for defendants