Risegold Ltd v Escala Ltd (2008)
The redevelopment of a property constituted "rebuilding or renewal" within the meaning of a right of entry that accordingly permitted the property owner to enter the adjoining property for the purpose of carrying out the works.
The appellant (R) appealed against a decision ((2008) EWHC 21 (Ch), (2008) 12 EG 102) refusing to grant a declaration that it was entitled to enter the yard of an adjoining freehold property owned by the respondent (E) for the purpose of carrying out proposed works of redevelopment to R's freehold property in accordance with a planning permission. R had bought its property with the benefit of a planning permission for the demolition of the existing single storey industrial structures at the property and for the building of a much larger block containing commercial units on the ground floor and some 24 flats on the upper floors. The transfer of the property to R's predecessor in title included the right to enter (without vehicles) such part of the yard at the rear of E's property as was necessary for the purpose of carrying out any "maintenance repair rebuilding or renewal" to the property. R proposed to use a tower crane erected in the centre of the site to lift construction materials from the street to wherever they were needed. R wished to enter E's property to erect a fence and scaffolding. The arm of the crane would also oversail E's property. Extended loading bays overhanging the scaffolding were also proposed. The intrusion of those various works items was expected to last for various periods up to 45 weeks of the total period of construction of the new premises. The judge held that the operations were not covered by "rebuilding or renewal to the property".
Other instances of the use of the terms "rebuilding or renewal" in planning law or in positive leasehold covenants were unhelpful and, indeed, positively misleading. It did not follow that because "rebuilding" had a restricted meaning in planning legislation, in a planning permission or in a leasehold covenant that it should bear a similarly restricted meaning in a right of entry provision. The scope of the right was conditioned by its underlying object. It must have been contemplated that the situation of the existing land and buildings would not remain the same for ever, that there might be changes in the character of the area and of the buildings that might be put on the property and that certain operations relating to the property could not be carried out without access to the adjoining property. There was no ground for confining the meaning of "the property" referred to in the right of entry to existing structures or for excluding the land on which the structures stood. The exercise of the right was subject to important safeguards in the transfer for the protection of E from inconvenience, nuisance and damage suffered by it. In context "rebuilding" included more than the reconstruction of the existing building to be as originally built or to be similar. The provision should be broadly construed so as to permit entry where different buildings were to be put up in place of the demolished buildings or where no new buildings were put up in their place. The judge's interpretation was a possible interpretation but would give rise to uncertainty and difficulties in practice. A broader interpretation was required to make the right of entry work in a sensible fashion. R would also be entitled to rely on "renewal" which would have a wider meaning than "rebuilding". The right of entry relied on by R covered its redevelopment of the property as either rebuilding or renewal within the meaning of the transfer.
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28 Oct 2008
Court of Appeal
Mummery LJ, Arden LJ, Keene LJ
LTL 28/10/2008 : (2008) NPC 116