Interestingly, the CA decided that the easement did extend to erection of the substantial new building. In its view, it was not helpful to simply look at other cases where the terms ‘rebuilding’ or ‘renewal’ had been used; it could be misleading to rely on meanings given to such words when used in planning legislation or leasehold litigation, since they might have completely different meanings in those cases. After all, when construing any document, context is everything. On the facts, it was clearly contemplated in 1993 that a redevelopment might take place at some future date. In the court’s view, there was no reason to confine the extent of the access right to simply replacing the existing buildings, although it could be argued that ‘rebuilding’ should be literally interpreted as the reconstruction of an existing building. But, conversely it could be argued that a strict interpretation might be over restrictive (eg if the building was destroyed then would it be possible to replace the existing building with anything different?). In the court’s view, ‘rebuilding’ must be given a broader and more flexible meaning, and must allow for the erection of different buildings. But what the court placed great emphasis on here was that the words ‘rebuild’ and ‘renew’ were both used, and the combined use of those words had a ‘crescendo effect’ which therefore gave a different and wider meaning to those words than they might otherwise have had. 



As we repeatedly note, cases of this sort always depend on their own facts. But, this decision is far wider than many practitioners would have anticipated. However, if one recognises that one has to look at the context at the time the easement was granted, then this decision is not so surprising. What is interesting, however, is the CA’s focus on the ‘crescendo effect’ of using ‘rebuilding’ and ‘renewal’ together. See Risegold v Escala [2008] EWCA Civ 1180 .© Practical Lawyer