England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Hand
2CL10263

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2014

Lord Justice Briggs :

1. This is an appeal and cross-appeal about the alleged abandonment of a right of way. Having read the skeleton arguments and heard the admirably concise submissions of Mr. Adam Chambers, counsel for the appellant, on both the appeal and the cross-appeal, we considered it unnecessary to hear from Mr. Gerard van Tonder for the respondent, and announced our decision that the appeal should be dismissed and the cross-appeal allowed. This judgment sets out my reasons for that decision.
2. By a conveyance on sale dated 11^th August 1922 ("the 1922 Conveyance") there was conveyed to Peter Keevil & Sons Limited ("Keevil") a substantial block of land in London NW8 (which I shall call "the Island Site") lying behind terraced properties on Edgware Road and Church Street, bounded on the northeast and southeast by what are now Penfold Street and Broadley Street (then called Carlisle Street and Earl Street). The 1922 Conveyance contained the express grant of a full (vehicular and pedestrian) right of way from Edgware Road to the land being sold over a passageway between two properties on the northeast side of Edgware Road retained by the vendor ("the Passageway").
3. In 1922 the Passageway led from Edgware Road to warehouse and industrial premises operated by Keevil for the purpose of its business as provision merchants. But the land sold with the benefit of the right of way included a substantial number of small residential properties around Keevil's industrial and warehouse premises which may or may not in practice have been accessible along the Passageway. The right of way was nonetheless granted for the benefit of the whole of the Island Site, and the Passageway appears to have been the main entrance to Keevil's business premises. Even now there is still a substantial pair of wrought iron gates at the Edgware Road entrance to the Passageway bearing the initials "PKS".
4. Keevil closed its business on the Island Site in the early 1960s, and most of the Island Site, together with other adjacent land, was acquired for council house development by the then St. Marylebone Borough Council, the immediate predecessor in title its present owner, the claimant City of Westminster ("Westminster"). Although some demolition occurred while the borough council remained owners of the site, the residential development was itself carried out in the late 1960s by Westminster, beginning in the spring of 1967.
5. The new development took the form of five blocks of residential flats built around a central recreational area, served by an underground car park and a service road beginning at an entrance off Broadley Street, running behind the existing properties facing Edgware Road, and then along the northwestern boundary of the Site, to an exit on Penfold Street. The result is that, but for obstructions to which I shall shortly refer, the Passageway now connects Edgware Road with that part of the service road running behind the Edgware Road properties.
6. It was no part of the design of this residential development that it should be served in any significant respect by the Passageway. The trial judge at the Central London County Court, HHJ Hand QC, rejected uninformed hearsay evidence to the contrary, and there is no challenge to that finding on appeal, nor indeed to any of the judge's findings of primary fact.
7. The appellant, Mr. Henry Dwyer, began to use the Passageway as a place for storing his stalls and other equipment used in his market trader business at the very end of the 1960s, just after the residential development had been completed. He continued to do so until this dispute arose in 2010, and obtained registered possessory title to the Passageway in 2007, upon the basis of adverse possession.
8. Throughout the period of Mr. Dwyer's use of the Passageway, the Edgware Road end of it was permanently obstructed, not only by the original wrought iron gates, but also by corrugated iron sheeting on the inside, and a rough line of brickwork, two courses high, at ground level on the inside. From 2010 there was also wooden shuttering on the outside. At the other end, connecting with the service road, there were doors which Mr. Dwyer kept locked, consisting of a wood framing with corrugated iron sheeting on the outside of it. Since the Passageway had been (probably for many years prior to the 1960s), and remained, effectively covered by the continuation of the Edgware Road terrace at and above first floor level, the effect of the blocking at one end and the gates at the other end of the Passageway was, for as long as those obstructions lasted, to convert it into an entirely enclosed storage unit, across which no access between Edgware Road and the Island Site has been obtained for some forty years. Nonetheless, as the judge found and is not challenged on appeal, it would only involve modest time and expense for the Passageway to be re-opened by the removal of those obstructions. The increasing size of typical vehicles, coupled with the increasing intensity of traffic on Edgware Road, would make it impracticable for much vehicular use, but perfectly accessible to pedestrians. Any such use, however modest, would render the Passageway entirely unsuitable for any continued beneficial occupation by Mr. Dwyer, whether for the purposes of his business or otherwise.
9. Westminster made no objection of any kind to Mr. Dwyer's complete obstruction of the Passageway from the end of the 1960s until 2010, because the access arrangements associated with the 1960s residential development of the Island Site rendered the Passageway effectively redundant. Nonetheless Westminster now wish to redevelop a substantial part of the Island Site and, in that connection, to achieve a re-opening of the Passageway for the purposes of giving access to what are described in a "Futures Plan" as "an area of creative workshops" proposed to be erected at the rear of the Edgware Road properties, and accessible both from Edgware Road, through the Passageway, and from Church Street. In 2010 Westminster requested that Mr. Dwyer reinstate the Passageway so as to make it accessible for the exercise of its right of way, which Mr. Dwyer refused to do on the ground that the right of way had been abandoned.

The Law

10. The law on abandonment of rights of way is well settled, relatively straightforward, and was not in dispute before the judge. For present purposes it is sufficient for me, as it was for the judge, to take those principles from the summary in Gale on Easements (19^th ed) at paragraph 12-104, judicial approval for which the editors attribute to an unreported part of the judgment of Silber J in Odey v Barber [2006] EWHC 3109 (Ch) [2008] Chancery 175, at paragraph 103, which itself relies on an earlier edition of Gale:

"(a) whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;

(b) abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement;

(c) abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;

(d) non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances."

11. To those principles it is only necessary to add, as the judge again did, that where the non-user is explicable by reference to the absence of any need of the owner of the dominant land to use the right of way for the time being, this will fortify a conclusion that there has been no abandonment of the right for all time: see Benn v Hardinge (1993) 66 P&CR 246, per Dillon LJ at 257.

The Judgment

12. In a lengthy and careful reserved judgment, the judge provided a vivid and detailed description of the facts, no part of which, save for his conclusion about abandonment, is in dispute on this appeal. He followed this with a summary of the relevant law, beginning with the extract from Gale quoted above, but delving considerably deeper into the authorities than I have found necessary, and ending with some concluding observations of his own. These included his view (shared by the editors of Gale, and by Stuart Smith LJ in Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 E.G.L.R. 259) that there is no reason in principle why there cannot be partial abandonment of a right of way. Both the judge and Stuart Smith LJ had in mind, by way of example, a permanent alteration to the servient land, acquiesced in by the owner of the dominant land, which prevented its use as a right of way for vehicles, as opposed to pedestrians.
13. At paragraph 97 of his judgment, the judge began his analysis of the abandonment issue (without, we were told, any encouragement by counsel on either side to do so) by focussing on the following extracts from the traditionally torrential language of the grant of the right of way in the 1922 Conveyance. He said:

"It seems to me that two distinct groups benefit from the right of way; the first… "the Purchaser and his assigns… and all persons authorised by them…"; the second is "Lessees and Tenants, Owners and occupiers for the time being of the said hereditaments… and all persons authorised by them…""

14. He then dealt separately with each of those two groups of persons, and concluded that there had been no abandonment of the right of way in favour of the first group, but there had been abandonment of it in the relation to the second. As to the second group, he found also that, because of the destruction of most of the small residential properties which had existed on the Island Site in 1922:

"The simple fact is that these "hereditaments" no longer exist".

Although there were numerous lessees, tenants, owners and occupiers of the flats which had in the 1960s been built on the site of the former properties, they were in the judge's view not the same hereditaments, so that their lessees, tenants, owners and occupiers could not benefit from the grant, as a matter of construction.

15. Leaving aside construction, the judge's reasons for concluding that there had been a partial abandonment of the right of way, so far as it benefited the second group, was derived from his undoubtedly correct perception that the 1960s residential development of the Island Site had been designed without any intention that the residential occupiers should make any use of the Passageway as a right of way. He said:

"In my judgement this is not a matter of alternative routes or temporary convenience. The development faces in an entirely different direction and has an entirely different concept of access than that which applied to the area before demolition."

16. The judge's reason for concluding that there had been no abandonment so far as concerned the first group (the Purchaser and his assigns, and all persons authorised by them) is to be found in the following passage at paragraph 104 of his judgment:

"It does not seem to me that this grant depends upon the nature of the site. In my judgement the fact that the Claimant has redeveloped the site does not alter its right to use the passageway for its own purposes in relation to the site. It has chosen to locate storage units associated with the Church Street market traders there and it seems to me that if it wished to do so the Claimant could authorise those traders to use that right of way… If there is to be a re-development of the area now occupied by the storage units so as to create small workshops and a craft market, that would provide the Claimant with a reason to make use of the right of way, which it has not hitherto done. In my judgment this situation is entirely the kind of decision envisaged in the decided cases; non-user by the Claimant over a period of 40 years or more does not justify the inference that the Claimant has abandoned its right of way."

17. The result was that the judge found that there had been an unusual kind of partial abandonment, not of a type of user (such as by vehicles) but of the benefit of the right of way for a particular class of potential users.
18. The result was that Westminster substantially succeeded in its claim because, there having been no abandonment by the freehold owner, it was entitled to an injunction requiring Mr. Dwyer to reopen the Passageway and to cease using it for storage purposes. Nonetheless the judge gave permission to appeal.

The appeal

19. The judgment left neither side entirely content with the outcome. Mr. Dwyer appealed on the grounds:

i) That there could not be partial abandonment of a right of way, still less abandonment with respect to certain users but not others;

ii) That, having found evidence of abandonment, the judge should have concluded that the right of way had been entirely abandoned;

iii) That the judge's approach to the construction of 'hereditaments' was wrong.

20. Westminster's cross-appeal followed an unusually similar structure to Mr. Dwyer's appeal. It also asserted that the judge had been wrong in all respects in relation to partial abandonment, and wrong in his construction of 'hereditaments'. It differed from the grounds of appeal, only in its assertion that the conclusion should have been that there had been no abandonment at all.
21. We were told during the brief hearing of this matter that neither side had invited the judge to conclude, even in the alternative, that there had been partial abandonment of the type identified in the judgment. Mr. Chambers for Mr. Dwyer had submitted that there had been an abandonment of the vehicular right of way, due to changes in the pavement level between the Passageway and Edgware Road. The judge rejected this and there is no appeal against that conclusion.

Analysis

22. The judge was, in my view, clearly wrong in his analysis of the construction of 'hereditaments'. It was merely part of an old-fashioned piece of drafting designed to make it clear that the right of way extended not merely to the land sold in 1922 as a whole, but to every part of it. The fact that particular structures or residential units which existed on the dominant land at the time of the grant might be demolished and replaced by others is nothing to the point, in the context of the express grant of a perpetual freehold easement. I need not dwell on this aspect of the matter, because counsel were agreed that the judge was wrong in this respect.
23. The judge was in my view also wrong in principle in concluding that there had been, or could be, a partial abandonment of a right of way, by reference to different classes of potential users of it. The compendious language of the 1922 Conveyance did not by its reference to lessees, tenants, owners and occupiers and persons authorised by them either add to or detract in any way from the grant of a freehold easement in a form of a right of way to the purchaser of the land the subject matter of that conveyance. All it did was to make it clear that the benefit of the right of way extended to every part of the land conveyed. A right of way, like any other easement, is a right which exists only as a right appurtenant to land. It is not simply granted to persons or classes of persons, and cannot exist in gross: see Megarry & Wade's Law of Real Property (8^th ed) at paragraph 27-001. While it is just about conceivable that a right of way might be partially abandoned in the sense that its benefit could be severed from some part of the originally dominant land, this is not what the judge concluded, nor was it contended for by either of the parties. Again, I need not dwell on this conclusion, because counsel were agreed that the judge's approach was wrong in principle.
24. That leaves the final question, namely whether the facts found by the judge lead to the conclusion that there had been a total abandonment of the right of way, or no abandonment at all. Mr. Chambers submitted that, since the judge found (in paragraph 102 of the judgment) that there was "sufficient evidence of abandonment", that led to the inevitable conclusion that the right of way had been abandoned entirely.
25. I disagree. For this purpose, the judge's relevant finding was, at paragraph 104, that there had been no abandonment of the right of way granted to "the Purchaser and his assigns… and all persons authorised by them" for the reasons set out in the passage quoted above. On the primary facts found by the judge, this was an inevitable conclusion. As I have described the relevant facts, this was a straightforward case of very long non-user of the Passageway as a right of way, during a period when neither the freehold owner of the dominant land, nor anyone else using any part of that land with the freeholder's consent (whether as lessee, tenant, occupier or mere invitee) had any use for the Passageway as a right of way. There was no acquiescence in some alteration of the servient land upon which a case of abandonment could be mounted, as indeed the judge held, at paragraph 99. He said:

"The laying of two courses of brickwork behind corrugated iron shuttering means that the gate cannot be opened without those obstacles being removed. Gates have been erected at the eastern end of the passageway. A doorway has been bricked up. But these are all superficial changes, which can easily be removed. Nor do I think that the Defendant would suffer any significant prejudice."

On those findings, this was a simple case of mere non-use, incapable of supporting a conclusion that the right of way has been abandoned for all time. There had, therefore, been no abandonment at all.

Lord Justice Aikens

26. I agree.

Master of the Rolls

27. I also agree.