To what extent can landowners invoke rights of access over adjoining property to redevelop land that benefits from the rights granted? Many will have noted the decision in Risegold Ltd v Escala Ltd [2008] EWHC 21 (Ch); [2008] PLSCS 289, where this issue was explored, and will be interested to know that the Court of Appeal has overturned that decision.
A developer planned to replace a single storey industrial building with a mixed-use, multi-storey building comprising mainly flats. It tried to take advantage of rights of entry over adjoining land for “maintenance, repair, rebuilding or renewal”, to facilitate the redevelopment. The adjoining landowner refused to allow the developer access to its land.
The High Court compared photographs of the existing building with an artist’s impression of its replacement. The judge noted that the rights that the developer was relying on were strictly limited and decided that the rights did not encompass the new development because they did not permit the construction of a new and entirely different building on the land.
The Court of Appeal has disagreed. The parties to the original deed of grant must have realised that the character of the existing land and buildings would not remain the same for ever, and that certain operations could not be carried out without access over the adjoining land. The rights accommodated the access needs of the owner of the property, while protecting the owner of the adjoining land against unnecessary inconvenience, disturbance and damage.
Some flexibility of meaning and certainty of operation was required to make the rights of entry work sensibly. Construing the rights more widely would enable the developer to make the fullest lawful use of its land, without prejudicing the interests of the adjoining landowner, and would reduce the scope for disagreement about whether the new buildings were similar to the existing buildings.
The word “rebuilding” had a broad and flexible meaning. It conferred rights of entry onto the adjoining land to preserve the existing buildings on the property, or to demolish them. It also encompassed rights of entry to erect similar or different buildings in their place. For good measure, the court also ruled that the order in which the words were arranged had a “crescendo effect”, giving a different and wider meaning to each word. As a result, the words “rebuilding or renewal” must contemplate something more than just some form of reproduction of the existing single storey buildings on the land.
Draftsmen take note. The developer was seeking access to the adjoining land to erect a fence around the redevelopment site. The developer also wished to erect scaffolding within the adjoining yard (and possibly extended loading bays overhanging the scaffolding for loading plaster boards at each floor level). It also planned to use a tower crane with an arm that would extend over the roof of the adjoining property and the yard. The scope and extent of rights of access should be clearly spelled out when rights are reserved or granted.
Allyson Colby is a property law consultant
