Critchley Hall News
The Need For Care In Drafting, A Case in Point.
The need for care in drafting, a case in point.
In Risegold Ltd v Escala Ltd (2008) EWCA Civ 1180 the Court of Appeal has overturned the High Court’s earlier decision and held that an easement granting access for “rebuilding” or “renewal” can be used to develop a property.
In this case Risegold sought to establish that a right to enter adjoining land and rebuild or renew its property permits it to completely redevelop the property into something quite different to that which was there before.
Risegold owned 2 industrial units at Quaker Court in London E1. It had bought the units in 2005 with the benefit of planning permission to demolish and replace them with a five or six storey block of commercial units with flats above.
Escala owned two adjoining units and a yard that ran alongside all of the units in Quaker Court. In 1993 when the units were sold off, a right of way was granted to Risegold’s predecessor to enter part of the yard as necessary to carry out maintenance, repair, rebuilding or renewal to the property. The right could only be exercised without vehicles and was subject to minimum disturbance and inconvenience being caused.
To carry out its development, Risegold required access to the yard for around 45 weeks so that it could comply with health and safety regulations and erect fencing scaffolding around its site. It also needed access to the airspace to allow the arm of a tower crane to swing over the yard.
Escala maintained that the proposed works went beyond rebuilding or renewal so Risegold had no right of access to the yard.
The High Court had decided that the original parties to the easement must have contemplated that any rebuilding or renewal was to be limited and would not include a complete redevelopment of the property. The Court of Appeal disagreed and made three general points:
- The wording used must be construed in the context of an easement. Reference to the construction of the same words in, for example, a planning law context is unhelpful.
- It is necessary to look at the likely intent of the parties at the time of the grant of the easement.
- Express limitations in the wording of the grant may not necessarily mean the easement is narrow in scope. The drafting might include safeguards for the servient owner (in this case Escala) because the rights being granted are wide ranging.
The Court of Appeal noted that the order of the easement’s specified purposes played a part as they had a ‘crescendo effect’. The right of access was granted for the purposes of ‘maintenance, repair, rebuilding or renewal’. The word order signified ‘renewal’ was something more than ‘rebuilding’.