Easements — Right of entry — Rebuilding or renewal — Property benefiting from right of entry to 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”
The claimant and the defendant owned adjacent industrial units, to the rear of which was a yard that lay within the defendant’s ownership. The claimant’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 claimant 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 claimant’s land.
The claimant applied for a declaration that it was entitled to enter upon the yard for the purpose of its proposed works. The defendant opposed that application. It 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. The claimant submitted that the grant contemplated renewal of the totality of the land and buildings comprised in the title, and not simply of the existing buildings already on the property, and that “renewal”, for those purposes, could encompass the construction of anything on the land for which planning permission was granted.
Held: The claim was dismissed. Although the claimant was entitled to build on the site whatever was permitted by planning permission, its entitlement to enter the yard depended not upon what was required for that purpose but upon the construction of the express grant in the 1993 conveyance. The terms of the grant indicated that it was intended to be construed strictly and to derogate to the minimum possible extent from the servient owner’s enjoyment of its land. The right did not extend to redevelopment by the construction of something different. The term “rebuild” did not necessarily require the new building to be identical to the old in every respect. However, it was implicit in that term that the existing building should be substantially replaced, and that the points of similarity should be sufficient to make the new building recognisable as being broadly equivalent to what had been there before the works were carried out. Whether a proposed development fell within the scope of the right was a question of fact; the claimant’s proposed development did not.
The following cases are referred to in this report.
Low v Innes (1864) 4 De GJ&S 286
Walker’s Settled Estate, Re [1894] 1 Ch 189
This was the hearing of a claim by the claimant, Risegold Ltd, against the defendant, Escala Ltd, for declaratory relief concerning a right of entry.
Noel Dilworth (instructed by Wayne Leighton) appeared for the claimant; Michael Pryor (instructed by Pinsent Masons, of Birmingham) represented the defendant.
Giving judgment, Mr Bernard Livesey QC said:
[1] This is an application by the claimant under CPR 8, seeking a declaration that it is entitled to enter upon adjacent land for the purposes of rebuilding or renewing its property pursuant to an express grant in the following circumstances.
[2] The dispute concerns neighbouring freehold premises at Quaker Court, London E1. The court itself comprises six single-storey warehouse/industrial units, numbered one to six and oriented from north to south; the claimant owns and occupies the southernmost pair of units, units 5 and 6, the latter bordering onto Calvin Street; the defendant occupies units 3 and 4, the latter sharing a party wall with unit 5.
[3] On the west side of the properties is a road, running from north to south, across which each of the units can access its main entrance. On the east side of the properties is a yard, also running to the north and south, which is in the title of units 3 and 4 and therefore owned by the defendant. It follows that the east side of the claimant’s units abut the defendant’s yard and it is in respect of that yard that the claimant seeks a declaration as to its rights.
[4] As at 1993, all four of the units were owned by a company called London & Brighton Estates Ltd. It transferred the title in units 5 and 6 to the claimant’s predecessor in title on 28 July 1993 and the title in units 3 and 4 to the defendant on 6 August 1993. The grant (or reservation) of the benefit to the claimant is in all material respects identical in both transfers and is expressed in the following terms:
The right (exercisable upon prior notice of not less than forty eight hours given to the owners and occupiers of the Adjoining Property) to enter (without vehicles) upon such part of the yard to the rear of the Adjoining Property 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, and to the making good forthwith of all damage caused to the Adjoining Property in the exercise of such right.
(Emphasis supplied.)
The defendant took a transfer of units 3 and 4 with a reservation of right for the benefit of the owner of units 5 and 6 in identical terms.
[5] The claimant purchased the property, on 17 November 2005, with the benefit of planning permission to demolish the existing single-storey structure at the property and to build a five- or six-storey |page:14| block containing commercial units on the ground floor and around 24 flats on the upper floors. The total area of the building proposed is approximately 22,055 sq ft, compared with an existing area for the current warehouses on units 5 and 6 of 3,382 sq ft. The claimant argues that it is able to achieve a construction of this sort, yet remain within the terms of the easement, by the use of modern building techniques. It seeks a declaration that it is entitled to do so.
[6] Mr Gennaro Picardi, who is the claimant’s architect and planning supervisor, has explained in a statement both the proposed method of work and the need for those “works items” to be performed that give rise to the need to exercise the right to the extent described. It is possible to see from a plan attached to his statement that central to the construction method devised is the use of a tower crane, to be erected in the centre of the site, that has the capacity to lift construction materials from the street and deposit them wherever required on the building under construction.
[7] The “works items” necessitated by the proposal include the following, and these will involve an intrusion into space on each of the four sides of the building, including the side adjacent to the yard as described:
(a) the erection of a 1,500mm-wide fence all around the site, including over the yard: works item #1;
(b) the erection of scaffolding within the 1,500mm fencing zone, plus a 900mm fanlight at around 3,500mm height from ground level (for protection against falls): works item #2;
(c) oversail of the tower crane to be erected within units 5 and 6, with an approximately 6.6m back-swing and a 22m arm from the centre of rotation, which will extend over the roof of the adjoining premises and the yard: works item #3; and
(d) possible extended loading bays of 3m x 1.5m overhanging the scaffolding of 1.5m wide for loading plasterboards and so forth on each floor level: works item #4.
[8] The intrusion envisaged by these “works items” is expected to last for various periods of up to 45 weeks of the total period of construction of the new premises, which is expected to last for 65 weeks in all. Although these are substantial periods, the objection from the defendant is not directed to the length of the period but to the contention that the purpose for which the claimant seeks to use the right is not a permitted purpose upon the true construction of the right.
[9] Any necessity for the above “works items” arises from a duty on the part of the construction company to comply with such health and safety regulations as will apply to the proposed works. In so far as the words “as is necessary” in the clause is concerned, there is no real dispute that the intrusion will be necessary for these purposes, and I so find.
[10] In the historical context, the units themselves date back to the early 1980s. They were only one-storey in height and of modest traditional construction (of brickwork and/or blockwork and a slightly inclined roof constructed of corrugated asbestos cement sheets). At the date upon which the right in clause 5 was granted, they were only around 10 years old, but no one would have envisaged that they would last for ever. Now they have the appearance of being “of their time” and “run down”. I can quite see that the time is coming when all will be replaced. As Mr Picardi states: “The brownfield inner city location of the development follows guidelines for local regeneration at high density.”
[11] However desirable it might be that there should be this or some other redevelopment of the area, the question for me to decide is a different question, namely whether clause 5 grants a right of access for the purpose. The real dispute is as to the meaning of the words “for the purpose of carrying out maintenance repair rebuilding or renewal to the Property” and, in particular, whether what is proposed can properly be described as “rebuilding or renewal to the Property”. It is agreed that it does not constitute “maintenance” or “repair”.
[12] The claimant advanced the following arguments:
(a) the proper trajectory from which a proper interpretation of the clause should proceed are the words actually used;
(b) it is important to notice that the rebuilding or renewal was to be “to the Property”, which it argues is the whole of the land and buildings comprised in the freehold title, and not just “the existing buildings” already on the property;
(c) in this context, the words “rebuilding or renewal of the Property” should be afforded a very broad interpretation;
(d) it is inconceivable that “rebuilding” should not incorporate some prior destruction of the structures that existed at the time of the grant;
(e) its proposals comprising “the demolition of the existing warehouse buildings along with the removal of asbestos and construction of a six storey block” are examples of “rebuilding” and/or “renewal”, within the meaning of the clause;
(f) this can be seen particularly to be the case in the context of point (b) above as the proposals can clearly be seen to be a rebuilding or renewal of the land just as “urban renewal”, involving as it does the “renewal” of the “urbs”, is not confined to replacing the existing buildings in their original state; and
(g) it would be unreasonable to think that, in 1983, the parties did not contemplate the improvement of building techniques, the possible change in character of the area and the possibility that buildings of a different character might be put onto the land.
[13] The defendant advanced the following arguments:
(a) the project was not in truth a rebuilding or renewal of the property but a comprehensive redevelopment of the property; redevelopment was not one of the permitted purposes; had the parties intended that it should be they could easily and would have said so;
(b) regard should be had to the relevant definitions of the terms “rebuild” and “renew” in the New Shorter Oxford English Dictionary (1993 ed):
(c) rebuilding is concerned with the rebuilding of whole or part (perhaps after complete or partial destruction in a fire) and has an element of flexibility in that the builder may construct something slightly different in place of the former building and employ different materials, finishes and techniques to the original building. Rebuilding is a wider concept than reinstating, the latter of which does not appear in the permitted purpose and is more explicitly concerned with a detailed return to the way the premises were prior to the commencement of works. The above notwithstanding, the use of the pre-fix “re” at the beginning of rebuilding connotes a significant degree of reference back to the original building. One may rebuild a house on the same plot to a similar size albeit in a different style and with a different layout. It will be a matter of fact and degree as to the point at which the new building can no longer be described as a rebuilt version of the old but replacement with something different. It is reasonably clear that one does not rebuild a small cottage as a substantial mansion house or a warehouse as a block of flats;
(d) although there is flexibility in the terms “rebuild” and “renew” in that the claimant can carry out improvements and rebuild or renew the whole or part of the warehouse differently, redevelopment is a wider concept than the combination of the four words used in the permitted purpose. It includes demolishing everything on the site and replacing any buildings (namely the warehouse) with something completely different; and
(e) if the proposed redevelopment is within the limits of the permitted purpose, it is very difficult to see what works would not be within that limit and whether in fact there is any limit on any sort of building works brought about by the permitted purpose. That would be a surprising result, since there must have been some reason for setting out and defining the permitted purpose.
[14] In my judgment, the first thing to note is that we are not here concerned with a restrictive covenant against development. The claimant is entitled to build on the site whatever building with whatever use the relevant planning authority will permit. The only question is whether it is entitled as of right to avail itself of the right of access to the yard pursuant to the express grant in clause 5. That does not depend upon the extent of the user required. It depends upon the purpose for which the right has been granted. We are therefore concerned with |page:15| the construction of an express grant of a right and normal canons of construction apply.
[15] One of the canons of construction includes the contra proferentem rule, and it has been argued by the claimant that, in the event of ambiguity, the words should be construed most favourably in favour of the claimant. I do not accept this. In this case, the two transfers, to the claimant’s predecessor and to the defendant, were made within days of each other by the same vendor, and I infer that it was purely accidental whether the grant of the benefit to the claimant or the express reservation from the title of the defendant should have occurred the first in time. This is not a case where a presumption in favour of either should be made. The words used should therefore be given their ordinary meaning within the context of the document as a whole as well as in their historical context.
[16] I do not entirely accept the claimant’s submission that the term “Property”, in the phrase “maintenance repair rebuilding or renewal to the Property” prima facie means “the totality of the land and buildings constructed thereon” and does not simply mean “the building(s)”. It argues that a conclusion on this in the claimant’s favour should lead to the conclusion that “rebuilding and renewing the Property” has a different meaning from “rebuilding and renewing the warehouse units 5 and 6”. Although the logic of the argument is attractive, it is, in my judgment, the case that the draftsman has used the term “Property” in a slightly inconsistent manner. For example, all the land is built upon except for a strip of around 6ft in depth between the southernmost wall of unit 6 and Calvin Street. It is not possible to get access to that strip of land itself from the yard onto which it abuts because there is a steel fence separating the two. There is therefore no sense in which the terms “maintenance” or “repair” can relate to the land (even if, which I doubt, it makes sense to talk about “maintenance or repair” of the land itself) rather than to the structures on the land. I am therefore not persuaded that the interpretation of the term “Property” for which the claimant argues does lead to a significantly different interpretation of the clause.
[17] Although the point is well made by the claimant that there is no restrictive covenant restraining development, and had the parties intended that “rebuilding” and “renewing” should not include redevelopment they could have made that explicit, the point is, in my judgment, neutralised by the point made by the defendant that had the parties wanted the right to extend to any redevelopment, they could quite easily have said so, their failure to say so being eloquent as to their contrary intention.
[18] With regard to the term “renew”, it is upon this term that the claimant particularly relies in conjunction with its argument that the term “Property” includes both the land and the buildings on it. The court, it argues, should adopt a broad interpretation of the term “renew”, akin to the meaning in the term “urban renewal”. The proposed construction should be viewed as a renewal of the land by the demolition of a building whose time has come and its replacement with one that is of the present and has a future. The defendant argues that if such an interpretation were to be adopted, there can be no limit to what can be constructed on the land provided only that the planning authority provide a planning consent. The claimant does not shrink from agreeing with that proposition and argues that this is the appropriate conclusion from the words used. For its part, it is content to argue that even a skyscraper is within the scope of the term “renewal to the property”.
[19] The primary definition of the term “renew” in the New Shorter Oxford English Dictionary is “make new again; restore to the same condition as when new, young or fresh”. If applied literally to the term “Property”, as the claimant contends, it seems to me that it would be possible to argue that the land should be returned to its former state as open countryside that existed in the distant past; if applied to the present building, it would be possible to argue for a restoration to the original as-built condition of the present dilapidated industrial buildings. There are other figurative meanings in the Dictionary, but it seems to me that these should not concern us here. I am not prepared to assume that the draftsman or his clients set much store about poetic or figurative usage, nor that they harboured ambitions about urban renewal.
[20] I have been referred to certain authorities in which the term “rebuild” has been judicially considered, but there are few of them that I have found of some assistance and they were concerned with the construction of express obligations imposed upon tenants in commercial leases and the like, where different considerations can apply. Those that I have found of some assistance are Low v Innes (1864) 4 De GJ&S 286 and Re Walker’s Settled Estate [1894] 1 Ch 189.
[21] In Low, in the context of the construction of a covenant on the part of the lessees to “rebuild” a new house and premises on the site of the demised messuage that they covenanted to pull down, it was held that the covenant did not involve any obligation to erect the new house in the same manner and in the same style and shape and with the same elevation as the old building. The Lord Chancellor rejected an argument to the contrary saying, at p288-289:
It was argued… that this word “rebuild” involved the obligation of erecting the new house not only on the same site, but in the same manner and in the same style and shape and with the same elevation as the old building. It is clear that no such conclusion can be derived from the use of the word “rebuild”.
[22] In the context of the Settled Land Acts, it was held in Re Walker’s Settled Estate that the alteration, reconstruction and enlargement of a mansion-house where part of the house was unaltered and the walls of another part were utilised was a “rebuilding”. The context was the issue of whether the tenant for life could recover the capital that he had expended on the property from the trust; he could not if the works constituted mere improvements or enlargements but could if they amounted to a rebuilding. Giving judgment North, J stated, at p192:
Having considered the matter, I have formed my own view; I think it is a question of fact in each particular case, and that in this case there has been a rebuilding within the meaning of [section 3(iv) of the Settled Land Act, 1890]. Supposing most of a house front were pulled down and a small part left, and the rest of the house was rebuilt, it could not be said that there was not a rebuilding; again if the house were burnt and the walls were left standing and made use of in erecting the new house, there would none the less be a rebuilding. Nor would the introduction of alterations and enlargements make any difference in that respect. And I do not think it would make any difference if the site were slightly shifted. If the house were built at a distance that would be another matter. That is one view of the case. I do not think, however, it follows that every rebuilding would be a rebuilding authorized by the section. For example, supposing a tenant for life of a large estate, or his predecessor, had been content to live in some mere farm-house or a small villa residence, if he were to erect a large mansion with all the requirements suited to his position as the owner of such an estate, I do not think that that ought to be considered a rebuilding, within the meaning of the enactment. I think there must be really a substantial rebuilding, and not merely alterations and enlargements.
[His Lordship examined the particular facts and proceeded: ]
I come to the conclusion that there has been a rebuilding on a somewhat enlarged scale, so as to make the mansion-house, as it exists at present, more suited to modern requirements and the size and value of the estate to which it is now attached.
[23] There are two things that I find helpful about this judgment. First, the observation that it is a question of fact in each particular case about which, ultimately, the judge has to form a view. Although it is entirely the case that the construction of a grant is a matter of law, the ultimate question for determination in the present case is whether the proposed development comes within the scope of the right as properly interpreted, and this is a question of fact. Second, there is the conclusion (which accorded with that of Lord Westbury LC in Low) that the term “rebuild” does not require the new building to be in all respects the same as the original; it may indeed be in some ways different in perhaps every respect from the original yet still be identifiable as substantially a rebuilding of the original. It seems to me that it is implicit in the term “rebuild” that there is a substantial replacement of what is already there. What is put in its place may be a replica (if it is so desired) or it may be a building constructed differently (for example, as a result of progress in building techniques and materials), with different and improved amenities and different external or internal styles (reflecting changes in taste) but where the points of similarity are sufficient to make the new none the less recognisable as being in broad substance equivalent |page:16| to what was there before. Notwithstanding the obvious differences, the new Wembley Stadium bears sufficient similarities to what there was there before as to be recognisable as being in broad substance equivalent to its predecessor. As the defendant argued, it will be a matter of fact and degree as to the point at which the new building can no longer be described as a rebuilt version of the old but replacement with something different.
[24] The claimant objects that this approach does not enable the parties to come to a conclusion on what should be a point of principle as a matter of certainty. I am not sure that this is necessarily the case, provided that both parties share the same interpretation of the terms of the right.
[25] In the last analysis, I have derived the greatest assistance from the internal clues within the 1993 transfers themselves. Within clause 5 of the transfer, there seems to me to be abundant internal evidence that the scope of the claimant’s right was intended by the grantor to be strictly limited and to derogate to the minimum possible extent from the enjoyment by the servient owner of its land. There is, first, the requirement that there should be “minimum disturbance and inconvenience” caused to the owner or occupier of the servient tenement; then the right of access was to be only for the specified purpose and even then should be over only “such part of the yard as is necessary” for the (specified) purpose.
[26] In addition to this, there is the important limitation that the right to enter has to be exercised “without vehicles”. A vehicle is defined in the New Shorter Oxford English Dictionary as “as a means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, etc”. A vehicle may of course be motorised or unmotorised. Access for a permitted purpose using either is prohibited. It is possible therefore to conclude that clause 5 envisaged that workmen employed to carry out either maintenance, repair, rebuilding or renewal would be entitled to take onto the defendant’s property any tools and equipment that they might be able to carry onto it without the benefit of a vehicle, motorised or unmotorised even a wheelbarrow. That suggests to me that any rebuilding or renewal of the property that the parties intended to come within the scope of clause 5 was contemplated by the parties at the date of grant to be severely restricted as to occasion and limited in extent.
[27] In my judgment, the congruence of the internal clues in clause 5 with the normal meaning of the words leads me to the conclusion that the defendant’s submission is to be accepted. I am not asked in this case to define the point at which it can be objectively determined when what is proposed to be built ceases to be a rebuilding but becomes a redevelopment by the construction of something different. For the purposes of the present case, the test seems to me to be easily applied. All I need to do is to compare the photographs of the existing buildings with the artist’s impression of the one that is projected. The view that I take is that the projected development is neither a rebuilding or renewal of property. Therefore, clause 5 will not afford the claimant the rights over units 3 and 4 that it seeks in these proceedings.
Claim dismissed.
