CDC2020 Plc v Ferreira
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE LATHAM,LORD JUSTICE BROOKE |
| Judgment Date | 05 May 2005 |
| Neutral Citation | [2005] EWCA Civ 611 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2004/1822 |
| Date | 05 May 2005 |
[2005] EWCA Civ 611
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke (Vice President of the Court of Appeal, Civil Division)
Lord Justice Latham
Lord Justice Lloyd
B2/2004/1822
MR P HAMLIN (instructed by Messrs Paul Gromett & Co) appeared on behalf of the Appellant
MR R BANWELL (instructed by Messrs Laytons) appeared on behalf of the Respondent
Thursday, 5th May 2005
This is an appeal from a judgment of His Honour Judge Rich QC sitting in the Central London County Court, given at a hearing on 13th July, the order being dated 19th July 2004. Permission to appeal was refused by the judge but granted by Neuberger LJ on 21st February this year.
In the action the claimant, CDC2020 Plc, succeeded in establishing, as against the first defendant, Mr George Ferreira, a right of way over the latter's land for access to part of the claimant's land. The second defendant took no part in the proceedings, so the contest was between the claimant and the first defendant only. The first defendant appeals.
The land in question is at Hove in East Sussex. The claimant's land is the former site of the Excelsior Hotel and is or was once known as numbers 205, 207 and 209, Kingsway. The land is shown on a plan which we have with the papers, which was annexed to the particulars of claim. That shows a corner at the junction between Kingsway and Carlisle Road. Carlisle Road runs northwards from Kingsway, roughly at right angles to Kingsway. The parcel of land which is actually on the corner is known as Dorset Court and is in the ownership of an entity which is not a party to these proceedings.
Next, eastwards along Kingsway, is the claimant's land. Fronting on to Kingsway, there are the buildings formerly numbered 205 to 209, which later became called the Excelsior Hotel, and which now take a different form altogether. Behind the building, to the north of it, is what I will call for convenience of reference "the garden". I have no idea whether it really was a garden at any relevant time. At some point it certainly seems to have been a car park, but I will refer to it as a garden simply as a convenient label.
To the north of that, on the eastern side of the claimant's property, is, as it were, an extension, which Mr Hamlin for the defendant has aptly called "the nib", which was the former site of three garages, and is again the site of three garages, but for a long time was not in that condition. Those three garages, as they originally stood, were the easternmost of a row of eight garages which appear to have been built in the late 1950s. The three to the western end appear to belong to the second defendant. The two in the middle are in separate ownership.
To the north of the site of the eight garages is an area shown blue on the plan which belongs to the first defendant. That is part of the way by which access is obtained between Carlisle Road and all eight of the garages. It appears to be clear that the owner of each of the garages has a right of way in similar terms over the blue land, the first defendant's land, and over the northern end of Dorset Court, the land on the corner.
The owner of Dorset Court is not a party to the proceedings because no issue arises between that owner and the claimant as to the ability of the claimant to get access to the site of the garages. The first defendant, however, contends that the claimant is not entitled to such access and his land is critical for the purposes of access.
It is an important feature, in terms of understanding the layout and the history, that the garages stand some 10 feet lower than the level of what I have called the garden. One has to understand that Carlisle Road, running northwards from Kingsway, also descends some way to produce that contour.
On 24th February 1964 a conveyance was executed of what is now the claimant's land, which included the following grant for the benefit of the purchaser (it is not clear to me whether this was the occasion on which the grant was first made, but that does not matter). The grant is in the following terms: "together with full right and liberty in common with others entitled to the like right, to pass and repass with or without motor cars or other vehicles over the land coloured blue on the said plan, for all purposes connected with the use and enjoyment of the three garages erected on the land coloured pink on the said plan, subject to the obligation to contribute towards the cost of repairing the said right of way as mentioned in a conveyance of 10th July 1959", the parties to which are mentioned. The pink land is what Mr Hamlin called "the nib" and what was the site of the three garages.
It is significant that it is only that land and not any other part of the claimant's title. The first defendant accepts that a right of way was validly and effectively granted for the benefit of that part of the claimant's land, and that if it still subsists the claimant is entitled to exercise it to get to the three garages that now stand on the pink land. But he contends that the right no longer exists because it has been abandoned.
The right, as I have read, is specifically granted for the purposes of the use of the three garages on the pink land, and that is an important feature of the case. At some point, (it seems to have been after 1964, though the date is not altogether clear) the three garages were demolished. It seems likely that this was at the same time as a change of use of the main building on the site from being a hotel to that of a police convalescent home, with car parks provided in connection with that use, both at basement and at ground level.
The evidence before the judge was mainly documentary and was introduced by one witness, the only witness who gave evidence at all, he being Mr Steven Dover, an employee of the claimant. The evidence included the planning register of Brighton and Hove City Council, then the local planning authority, from which, as Mr Dover said, one can see, first of all, that permission was granted for the construction of the eight lock-up garages in 1957; that then there were two unsuccessful applications for permission for the construction of a block of residential flats on the site in 1961; and that there were then two conditionally successful applications for the construction of a modern block of residential flats with garages and car park in 1962; and then in 1963, and further in 1964, there were conditional grants of permission for use as a police convalescent home. That is the grant that was implemented.
At that time the garages were demolished and, in order to provide access to the two car parks that I have mentioned, two ramps were constructed, partly on the site of the former garages and no doubt partly extending further south. One of them led down to the car park at basement level and the other led up to a car park at ground level on what I have called, for convenience, the garden.
The use as a police convalescent home continued for some while, but at a later stage, I think probably in the 1990s or by the end of the 1980s, hotel use was resumed. At some point in the 1990s it seems that the basement car park was discontinued and the use of the basement was converted to other purposes, to do with the provision of conference facilities.
The way, partly over Dorset Court and partly over the first defendant's land, continued to be used throughout this period for access to the ramps and thereby to the basement car park for as long as it was used as such, and to the ground level car park. The ground level car park seems to have continued in use until the hotel finally ceased trading in about 1998. The claimant acquired the site in 2002 for redevelopment and has been able to redevelop it, including, as I say, constructing three garages on the site of the pink land. As the judge said, for a period of over 30 years there were no garages on the pink land and such use as was made of the right of way was to lead not to the pink land for its own sake but by way of access over it to land within the site of the former hotel, on the garden at ground level and in the basement below it.
The first defendant's contention, advanced by Mr Hamlin before us attractively and succinctly, as he no doubt did at trial, is that the demolition of the garages and the later construction of the ramps and the car parks to which they led, compels an inference that the right of way, which existed solely in connection with the use of the garages, was abandoned forever at that time by the claimant's predecessor in title and accordingly is no longer in existence and exercisable by the claimant.
The judge did not accept that proposition. Nor do I.
One point of contention is whether the granted right of way is exercisable at all unless the garages, or one or more of them, are in place. I leave aside a case, which is purely hypothetical, where the garages were demolished for the purposes of clearance and for reconstruction in a different form. In such a case the right could no doubt be used on any basis during the hiatus period for the purposes of demolition and for the construction of the new garages.
That case apart, Mr Hamlin submits that the terms of the grant are such that if there are no garages there can be no access. The judge did not accept that. He took the view that the dominant tenement was the pink land and that the...
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