Henry Dwyer v The Lord Mayor and Citizens of the City of Westminster
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Aikens,Master of the Rolls |
| Judgment Date | 19 February 2014 |
| Neutral Citation | [2014] EWCA Civ 153 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2013/3003 |
| Date | 19 February 2014 |
[2014] EWCA Civ 153
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
The Master of the Rolls
Lord Justice Aikens
and
Lord Justice Briggs
Case No: B2/2013/3003
Adam Chambers for the Appellant
Gerard van Tonder (instructed by Head of Legal & Democratic Services) for the Respondent
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.
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").
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".
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.
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.
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.
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.
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.
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
The law on abandonment of rights of way is well settled, relatively straightforward, and was not in dispute before the...
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