To what extent can landowners invoke rights of access over adjoining land to construct buildings of a different character on land that benefits from the rights of access granted? This issue often arises in respect of brownfield sites, where the character of a neighbourhood may have changed, especially as planning authorities now promote high-density housing developments that make maximum use of all available space. Are landowners that benefit from expressly granted easements conferring rights of entry for “maintenance, repair, rebuilding or renewal” entitled to take advantage of those rights for redevelopment purposes?
The High Court decision in Risegold Ltd v Escala Ltd [2008] EWHC 21 (Ch); [2008] PLSCS 13 reminds us that rights of entry will not always accommodate urban renewal and redevelopment. It also demonstrates the importance of making careful checks before acquiring land that is ripe for development to ascertain whether any existing rights of entry are sufficiently wide to include access for redevelopment.
The developer planned to replace a single-storey industrial building with a mixed-use, multi-storey building comprising mainly flats. The judge compared photographs of the existing building with an artist’s impression of its replacement and, after closely examining the “internal clues” in the deed granting the easements, decided that the rights granted did not encompass the new development.
The judge reminded the parties that the construction of the deed of grant was a matter of law. The courts must focus on the meaning of the words used and the context in which the rights were granted. The rights that the developer was relying upon were strictly limited. They were for pedestrian use only – a restriction that, according to the judge, would prevent the use of any form of conveyance, including even a wheelbarrow. The rights were exercisable only in so far as necessary; they were also conditional on causing minimum disturbance and inconvenience to the owners and occupiers of the adjoining property. This suggested that the rights to rebuild and renew the property were severely restricted, both as to occasion and extent.
It was then a question of fact as to whether the proposed development came within the scope of the rights, as properly interpreted. The right of entry to “renew” the property encompassed rights of entry to enable the landowner to restore the building to its original condition. The right of entry to “rebuild” the property was to be interpreted by reference to the building that stood on the land when the rights were granted. However, the word “rebuild” does not indicate that the new building must be a complete replica of the original. A new building may differ from the original in some ways while still being broadly recognisable as a replacement. To cite a modern example, the new Wembley Stadium might be described as being broadly equivalent to the building that it replaced.
This useful decision will assist practitioners in a variety of circumstances when dealing with development work and also in respect of insurance provisions and rebuilding obligations in commercial leases.
Allyson Colby is a property law consultant
