Does a right to rebuild or renew include a right to develop?
Does a right to rebuild or renew include a right to develop?

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Does a right to rebuild or renew include a right to develop?
  • Meaning of rebuilding
  • The parties' intentions
  • Flexibility of meaning
  • The crescendo effect
  • Clarity and intention
  • Landlords—express reservation, quiet enjoyment and derogation from grant

Meaning of rebuilding

Depending on context, the Court of Appeal confirmed that rebuilding meant more than the reconstruction of the existing buildings. The fact that rebuilding has a restricted meaning in planning legislation or in a leasehold covenant, does not mean that it should bear a similarly restricted meaning in a right of entry provision. Risegold v Escala [2008] All ER (D) 269 (Oct)

The limited purposes for which the easement could be exercised (rebuilding or renewal to the property) had to be read in the context of the nature of the right. It was not a restrictive covenant giving the adjoining owner the right to object to the replacement of the existing buildings within the new development.

The parties' intentions

It must have been contemplated when the right was reserved that there would be possible changes to the land and buildings in the future. Therefore, reference to the property included not just the existing buildings on the land, but the land on which they stood.

Flexibility of meaning

Flexibility of meaning was required to make the right work in a sensible fashion. If rebuilding was construed narrowly (ie reconstruction of the existing building only), it would make the right too difficult to exercise in practice. There would be numerous disputes as to whether the proposed buildings were sufficiently similar to the existing buildings.

The terms in which the right was couched reflected the protection of the owner of the adjoining land against unnecessary disturbance and inconve