The claimant owned two single-storey industrial units which backed onto a yard owned by the defendants. The claimant had the benefit of the following right:

"The right...to enter (without vehicles) 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 proposed to demolish the existing units and build a five or six-storey block containing a mix of commercial units and flats in its place. For this purpose, it would need to erect a fence round the site (including over the yard), as well as put up scaffolding and a crane which would overhang the yard. It sought a declaration that this would be covered by the existing right.

It was accepted that the redevelopment plans were not works of maintenance or repair; the question was therefore whether they could properly be described as rebuilding or renewal. The judge held that the term 'rebuild' did not require the new building to be in all respects the same as the original. However, it must be a substantial replacement of what is already there. There may be differences in construction technique as a result of progress in building techniques and materials, different and improved amenities, and different external or internal styles (reflecting changes in taste). But what is built must in broad substance be equivalent to what was there before. The judge gave the example that the new Wembley Stadium bears sufficient similarities to what was there before to be recognizable as being broadly equivalent. Similarly, the term 'renew', as defined in the dictionary, means to restore to original condition.

The judge also placed reliance on the other wording of the grant as establishing evidence that the scope of the right was intended to be strictly limited and to derogate to the minimum possible extent from the enjoyment of the yard. For example, the requirement that there should be minimum disturbance and inconvenience caused to the owner of the yard; the fact that 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 was necessary for that purpose'. In addition to this there was the important limitation that the right to enter had to be exercised without vehicles.

On this basis, the judge concluded that the projected development was not either a rebuilding or a renewal, and therefore the claimant could not take advantage of the right.

Things to consider

Most of the case law on the meaning of terms such as 'rebuild' and 'renew' is in the context of repairing obligations in commercial leases. The judge was referred to cases in this area but thought that they did not assist since different considerations could apply in a landlord and tenant context from the present situation.

Developers who require rights of entry, drainage etc in order to carry out developments must examine the wording of expressly granted easements carefully to ensure that their proposals are covered.

Risegold Ltd v Escala Ltd