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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dwyer v The City of Westminster [2014] EWCA Civ 153 (19 February 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/153.html Cite as: [2014] EWCA Civ 153 |
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ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Hand
2CL10263
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE AIKENS
and
LORD JUSTICE BRIGGS
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HENRY DWYER |
Appellant |
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- and - |
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THE LORD MAYOR AND CITIZENS OF THE CITY OF WESTMINSTER |
Respondent |
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Gerard van Tonder (instructed by Head of Legal & Democratic Services)
for the Respondent
Hearing dates : Wednesday 12th February 2014
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Crown Copyright ©
Lord Justice Briggs :
The Law
"(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."
The Judgment
"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…""
"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.
"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."
"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."
The appeal
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.
Analysis
"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
Master of the Rolls