Dwyer v Westminster City Council

[2014] EWCA Civ 153

19th February 2014

Court of Appeal


The appellant (D) appealed against the grant of an injunction requiring him to cease using and to reopen a blocked right of way. The respondent local authority cross-appealed against a finding of partial abandonment of the right of way. In 1922, a block of land (the site) was conveyed to a company with the express grant of a vehicular and pedestrian right of way from the main road via a passageway. The site included a substantial number of residential properties and the right of way benefited the whole site. Subsequently, the company closed and the site was acquired for council house development. In the 1960s, just after the development was completed, D began using the passageway to store equipment for his market trader business. In 2007, he obtained registered possessory title on the basis of adverse possession. Both ends of the passageway were blocked off by a locked gate and door; it had effectively become an entirely enclosed storage unit across which no access between the main road and the site had been obtained for 40 years. In 2010, the local authority (W) requested that D reinstate the passageway so that it could exercise its right of way. D asserted that the right of way had been abandoned. The judge found that two potential user groups benefited from the right of way: (a) "the purchaser and his assigns"; (b) "lessees and tenants, owners and occupiers". He concluded that there had been abandonment in relation to group (ii) on the basis that the council development had been designed without any intention that the residential occupiers should make any use of the right of way. With regard to group (a) he held that the local authority had a reason to use the passageway, which it had not previously done, and that the 40-year period of non-use did not justify a finding that it had abandoned the right of way. W submitted that there could not be partial abandonment of a right of way, still less abandonment with respect to certain users but not others and the judge, having found evidence of abandonment, should have concluded that the right of way had been entirely abandoned.

Appeal dismissed, cross-appeal allowed. The judge was wrong in principle to conclude that there had been, or could be, a partial abandonment of a right of way by reference to the different classes of users. The reference in the conveyance to "lessees, tenants, owners and occupiers" did not add to or detract in any way from the grant of a freehold easement in the form of a right of way to the purchaser of the land that was the subject matter of the conveyance. All it did was clarify that the benefit of the right of way extended to every part of the land conveyed. A right of way 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 that the judge had concluded, nor was it contended for by either of the parties. On the primary facts found by the judge, it was inevitable that he would conclude that there had been no abandonment of the right of way granted to group (a). It was a straightforward case of very long non-use 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 it 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; the obstacles to access could be removed at little cost. That finding was incapable of supporting a conclusion that the right of way had been abandoned (see paras 23-24 of judgment).

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