Westminster City Council v Dwyer

Right of way – Abandonment – Obstruction – Right of way existing over passageway for benefit of land on which residential development owned by respondents later constructed – Appellant blocking off passageway and using as enclosed storage unit for his business materials – Respondents not objecting while passageway not needed for access to development – Respondents later seeking reinstatement of passageway in connection with redevelopment plans – Whether right of way abandoned – Right held to be abandoned in part – Appeal dismissed – Cross-appeal allowed The respondent council owned a residential development comprising five blocks of flats, which had been built in the late 1960s on land behind Edgware Road, London NW8. The development was reached by a service road that ran behind the older properties facing Edgware Road. Between two of those properties and the service road lay a passageway, which pre-dated the development and was the subject of a vehicular and pedestrian right of way granted in a 1922 conveyance in favour of the land on which the development had later been built. Ever since the development had been completed, the appellant, a market trader, had used the passageway as a place for storing his stalls and other equipment for his business. In 2007, he had been registered with a possessory title to the passageway based on adverse possession. Throughout the period of his use, the passageway had been entirely obstructed by the addition of corrugated iron sheeting, brickwork, locked doors and later wooden shuttering, the effect of which was to convert the passageway into an enclosed storage unit. Since the passageway was not needed to access the development, the respondents did not object to the appellant’s obstruction of it until 2010, when, in connection with redevelopment plans, they requested that the appellant reinstate the passageway to make it accessible for the exercise of the right of way. The appellant claimed that the right of way had been abandoned and no longer existed. In the court below, the judge found that there had been partial abandonment, based on the wording of the right of way as benefiting two classes of persons, namely “the Purchaser and his assigns… and all persons authorised by them…” and, second, “Lessees and Tenants, Owners and occupiers for the time being of the said hereditaments… and all persons authorised by them”. He held that the right of way continued to exist for the benefit of the first class, such that the respondents were entitled to an injunction requiring the appellant to reopen the passageway and to cease using it for storage purposes. However, he found that, owing to the destruction of the small residential properties that had been on the development land in 1922, the right of way had been abandoned in respect of the second class of persons since the original “hereditaments” no longer existed. Both parties appealed. Held: The appeal was dismissed; the cross-appeal was allowed. Abandonment was not lightly to be inferred. Lack of use was not, by itself, conclusive evidence that a private right was abandoned; the lack of use had to be considered with, and might be explained by, the surrounding circumstances: Odey v Barber [2006] EWHC 3109 (Ch); [2008] Ch 175; [2007] PLSCS 18 applied. Further, where the non-user was 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, that would fortify a conclusion that there had been no abandonment of the right for all time: Benn v Hardinge (1992) 66 P&CR 246 applied. The judge had been wrong to find that there had been partial abandonment of the right of way. He had erred in his analysis of the construction of the word “hereditaments”, which 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 made no difference in the context of the express grant of a perpetual freehold easement. He had also been 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 that was the subject matter of that conveyance. It merely made 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, was a right that existed only as a right appurtenant to land; it was not simply granted to persons or classes of persons and could not exist in gross. While it was 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, that was not what the judge had found or either party had contended. The correct analysis was that there had been no abandonment of the right of way at all. The judge’s conclusion that the right granted to the purchaser, his assigns and all persons authorised by them had not been abandoned was inevitable on the facts that he had found. 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, on which a case of abandonment could be mounted. A simple case of mere non-use was incapable of supporting a conclusion that the right of way had been abandoned for all time. Adam Chambers (instructed by Raymond Saul & Co LLP) appeared for the appellant; Gerard van Tonder (instructed by the legal department of Westminster City Council) appeared for the respondents. Sally Dobson, barrister