Easements – Right of entry – Appellant’s property benefiting from right of entry to respondent’s adjoining yard for purposes of rebuilding or renewal – Planning permission to demolish single-storey industrial unit and build five-storey commercial and residential block – Whether right of entry to yard for that purpose – Whether redevelopment “rebuilding or renewal” – Appeal allowed
The appellant and the respondent owned adjacent industrial units, to the rear of which was a yard that lay within the respondent’s ownership. The appellant’s land had the benefit of an easement, granted by a 1993 conveyance by the parties’ mutual predecessor in title, to enter upon “such part of the yard… as is necessary for the purpose of carrying out maintenance repair rebuilding or renewal to the Property”, subject to “the minimum disturbance and inconvenience being caused to the owners and occupiers of the Adjoining Property”.
The appellant had planning permission to demolish the existing single-storey building on its land and to construct a five- or six-storey block containing commercial units and flats. The works would necessitate entry into the yard, the temporary erection of fencing and scaffolding and the overhead intrusion of the arm of a tower crane to be erected on the appellant’s land.
The appellant applied for a declaration that it was entitled to enter the yard for the purpose of its proposed works. Opposing that application, the respondent contended that the works did not involve “rebuilding or renewal” within the terms of the 1993 grant since that term was confined to rebuilding the existing structures and did not extend to complete redevelopment by the construction of something different. The appellant submitted that the grant contemplated renewal of the totality of the land and buildings comprised in the title, not merely of the existing buildings; “renewal”, for those purposes, could encompass the construction of anything on the land for which planning permission was granted. In the court below, the deputy judge had held that the grant was intended to be construed strictly so as to derogate to the minimum extent possible from the respondent’s enjoyment of its land. Accordingly, he preferred the respondent’s interpretation: see [2008] 1 EGLR 13; [2008] 12 EG 102. The appellant appealed.
Held: The appeal was allowed.
The right was conferred in respect of “the Property” as a whole rather than only the existing structures upon it. The term “rebuilding” was not confined to the reconstruction of an existing building in the same or a similar form, but was capable of having a broader and more flexible meaning. It permitted entry for the purposes of preserving existing buildings on the appellant’s property, or demolishing them and erecting buildings similar to the demolished buildings, or different buildings or no buildings. There was no good reason why the respondent should be prevented from objecting to the first two options but not the others. It must have been contemplated by the original parties to the grant that: (i) the situation of the land and buildings would not remain the same forever; (ii) there could be changes to the character of the area and the buildings that might be erected on the appellant’s property; and (iii) certain operations relating to that property could not be carried out without accessing the adjoining property. The terms in which the right was couched reflected both the access needs of the owner of the appellant’s property and the protection of the owner of the adjoining property from unnecessary disturbance and inconvenience and against damage. Moreover, the narrower interpretation given to the right by the deputy judge could give rise to uncertainty and created more scope for disagreement between the parties, for instance as to whether proposed replacement buildings were “similar” to those in existence. Some certainty of meaning and flexibility of operation was needed in order to make the right of entry work in a sensible fashion. The broader interpretation of the right would enable the appellant to make the fullest use of its property in a lawful manner without prejudicing the legitimate interests of the respondent as the owner of the adjoining property.
Further, even if “rebuilding” were given a more limited meaning, the appellant could rely upon the reference to “renewal” in order to exercise the right of entry. Read in context, “renewal” appeared to be given a different and wider meaning than “rebuilding”, covering building operations and developments that were not covered by the latter term.
Noel Dilworth (instructed by Wayne Leighton, of Edgware) appeared for the appellant; Michael Pryor (instructed by Pinsent Masons LLP, of Birmingham) appeared for the respondent.
Sally Dobson, barrister
