Easements — Abandonment — Right of way — Right of way to three garages — Garages demolished and site used for purposes outside terms of easement for more than 30 years — Whether easement abandoned
The respondent owned a property that had originally consisted of buildings, a garden and a further area (the pink land) upon which three garages had once stood. A 1964 conveyance of the property granted a right of way over land coloured blue on the conveyance plan “for all purposes connected with the use and enjoyment of the three garages erected on” the pink land. The appellant owned part of the blue land. Two ramps replaced the demolished garages and provided access to the garden, for parking purposes, and to a basement car park. One of these ramps was placed partly on the pink land. For more than 30 years, the appellant’s part of the blue land was used to access these parking areas outside the pink land. In 2002, the respondent redeveloped the property and constructed three garages on the pink land. The trial judge held that the respondent had a right of way to the pink land over the appellant’s part of the blue land, and that it had not been lost by abandonment. The appellant appealed, contending that the demolition of the three garages, and the subsequent construction of the ramps and the car parks to which they led, compelled the inference that the right of way, which existed solely in connection with the use of the garages, had been abandoned forever, and was therefore no longer exercisable.
Held: The appeal was dismissed. Use of the way for access to the car parks was not permitted by the terms of the grant (apart from any issues relating to prescriptive acquisition). It was not sufficiently clear from the dominant owner’s conduct in demolishing the garages and providing the ramps whether its firm intention at the relevant time was that neither it nor its successors should thereafter make use of the easement. Demolition of the garages would have been insufficient; the fact that the way continued to be used unlawfully did not bear on the matter either way.
The following cases are referred to in this report.
Cook v Bath Corporation (1868) LR 6 Eq 177
Das v Linden Mews Ltd; sub nom Chand v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 2 EGLR 76; [2002] 28 EG 130
Gotobed v Pridmore (1971) 217 EG 759; (1970) 115 SJ 78, CA
Graham v Philcox [1984] QB 747; [1984] 3 WLR 150; [1984] 2 All ER 643; (1984) 48 P&CR 354; CA
Harris v Flower (1904) 74 LJ Ch 127
National Guaranteed Manure Co v Donald (1859) 4 H&N 8
Scribes West Ltd v Relsa Anstalt (No 1) [2004] EWCA Civ 835; [2005] CP Rep 2
This was an appeal by the appellant, George Ferreira, from a decision of Judge Rich QC, sitting in Central London County Court, in a claim by the respondent, CDC2020 plc, for declaratory and other relief.
Patrick Hamlin (instructed by Paul Gromett & Co) appeared for the appellant; and Richard Banwell (instructed by Laytons) represented the respondent.
Giving the first judgment, Lloyd LJ said:
[1] This is an appeal from a judgment of Judge Rich QC, sitting in Central London County Court, given at a hearing on 13 July, the order being dated 19 July 2004. Permission to appeal was refused by the judge but granted by Neuberger LJ on 21 February this year.
[2] In the action, the respondent, CDC2020 plc, succeeded in establishing, as against the first appellant, Mr George Ferreira, a right of way over the latter’s land for access to part of its land. The second appellant took no part in the proceedings, so the contest was between the respondent and the first appellant only. The first appellant appeals.
[3] The land in question is in Hove, in East Sussex. The respondent’s land is the former site of the Excelsior Hotel and is, or was once, known as nos 205, 207 and 209 Kingsway. The land is shown on a plan that 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 that is actually on the corner is known as Dorset Court and is in the ownership of an entity that is not a party to these proceedings.
[4] Next, eastwards along Kingsway, is the respondent’s land. Fronting onto Kingsway there are the buildings formerly numbered 205-209, which later became called the Excelsior Hotel, and that 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 merely as a convenient label.
[5] To the north of that, on the eastern side of the respondent’s property, is, as it were, an extension, which Mr Patrick Hamlin, for the appellant, 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 that appear to have been built in the late 1950s. The three to the western end appear to belong to the second appellant. The two in the middle are in separate ownership.
[6] To the north of the site of the eight garages is an area shown in blue on the plan, which belongs to the first appellant. 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, that is, the first appellant’s land, and over the northern end of Dorset Court, the land on the corner.
[7] The owner of Dorset Court is not a party to the proceedings because no issue arises between that owner and the respondent as to the ability of the latter to gain access to the site of the garages. The first |page:16| appellant, however, contends that the respondent is not entitled to such access and that his land is critical for the purposes of access.
[8] It is an important feature, in terms of understanding the layout and the history, that the garages stand some 10ft 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.
[9] On 24 February 1964, a conveyance was executed of what is now the respondent’s land, which included the following grant for the benefit of the purchaser (it is not clear to me whether this was the occasion upon 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.
[10] It is significant that it is only that land and not any other part of the respondent’s title. The appellant accepts that a right of way was validly and effectively granted for the benefit of that part of the respondent’s land, and that if it still subsists the respondent is entitled to exercise it in order 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.
[11] 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, although 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.
[12] 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 respondent. 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 a 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.
[13] 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, what I have called, for convenience, the garden.
[14] 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.
[15] The way, partly over Dorset Court and partly over the appellant’s land, continued to be used throughout this period for access to the ramps and thereby to the basement car park for so 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 around 1998. The respondent acquired the site in 2002 for redevelopment and has been able to redevelop it, including, as I said, constructing three garages on the site of the pink land. As the judge said, for a period of more than 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.
[16] The appellant’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 respondent’s predecessor in title and, accordingly, is no longer in existence and exercisable by the respondent.
[17] The judge did not accept that proposition. Nor do I.
[18] 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.
[19] That case apart, Mr Hamlin submitted 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 right could be used for the purposes of access to the pink land even if the garages were not there.
[20] For present purposes, I am prepared to proceed on the basis that Mr Hamlin is right about this and that the right could not legitimately be exercised at a time when there are no garages on the pink land, apart, as I say, from the case of using it in connection with demolition and construction.
[21] In any event, it is clear that use of the way for access to the basement and ground-level car parks was unlawful and not permitted by the terms of the grant. Such use, from the late 1960s for more than 20 years, might have provided the basis for a claim to a more extensive right by way of prescription, but no such right was asserted by the respondent in the particulars of claim and so it is irrelevant.
[22] On the principles discussed in Harris v Flower (1904) 74 LJ Ch 127 and recently in Das v Linden Mews Ltd [2002] EWCA Civ 590*, that use of the way was unjustified and, subject to any factors relevant to the exercise of the court’s discretionary jurisdiction, might have been restrained by injunction at the suit of the appellant or his predecessors in title.
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* Editor’s note: Reported at [2002] 2 EGLR 76
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[23] Abandonment is a different question. The statement of the law relied upon principally below, and by the judge, is that of Buckley LJ in Gotobed v Pridmore, decided by the Court of Appeal on 16 December 1970, which is available in a Court of Appeal transcript, and is also reported shortly at (1970) 115 SJ 78*. Having had the opportunity of comparing that report with the full judgment, it is right for me to say that the essence of Buckley LJ’s reasoning is fairly reflected in the short report.
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* Editor’s note: Also reported at (1971) 217 EG 759
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[24] As Buckley LJ puts it, the dominant owner must manifest an intention to abandon the right and, in order to do so, must make it clear that its intention is that neither it nor its successors in title should thereafter make any use of the right. He observes that abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property unless to do so is to their advantage, even if they have no present use for the property in question.
[25] There are cases in which a physical change to the dominant tenant results in the right no longer being exercisable. One such case, which Mr Hamlin mentioned to us without citing it, is the striking one of National Guaranteed Manure Co v Donald (1859) 4 H&N 8, where the right was to the supply of water from given sources to a canal, but |page:17| the canal was later filled up and turned into a railway. It was held that upon the canal ceasing to exist so the right ceased to exist.
[26] The facts in Gotobed were very different. Mr Hamlin relied fairly upon a comment by Buckley LJ that the court was impressed by the ease with which the physical state of affairs could have been altered so as to restore the right of way.
[27] Buckley LJ also referred in the course of his judgment in Gotobed, in a passage not summarised or referred to in the Solicitors’ Journal report, to an earlier case, Cook v Bath Corporation (1868) LR 6 Eq 177, where the plaintiff owned a house, the back door of which had been bricked up for around 40 years, up to 1864, at which time he reopened it and restored it to use. The defendant then began works obstructing or threatening to obstruct a passageway to which the door gave access. Sir John Malins, Vice-Chancellor, held that there had been no abandonment of the right of way from the back door over the passageway despite the 40 years during which it had been bricked up.
[28] Mr Hamlin did not rely upon the demolition of the garages by itself. That, on his argument, would have suspended the right to use the way but not necessarily have extinguished it. Rather, he relied upon the demolition followed by the construction of the ramps and the car parks to which they led. He submitted that these works were: (a) substantial and (b) incompatible with the use of the pink land for which the way could properly be used.
[29] He also said that the reconstruction of garages would sterilise the use of the car parks so that the then owner’s acts showed to the world an intention to use this site entirely inconsistently with garage use of the pink land. Not least, to put the garages back would require not only substantial work and expenditure on the pink land itself, but would, in effect, require a quite different use of the site of the two car parks.
[30] It is the case, however, that that is what has now happened. Of course, Mr Hamlin is correct in submitting that the question of abandonment or not has to be tested at the time of the acts relied upon as showing abandonment without reference to later events. But it seems to me that Mr Richard Banwell, for the respondent, was entitled to comment that what has happened is something that could have been foreseen as a possible future change in the use of the site. The use of the building has changed in a number of ways over the years and the planning history indicates that a number of other changes have been proposed from time to time, albeit either unsuccessfully in planning terms or not taken up in fact.
[31] Mr Hamlin contended that the respondent’s predecessor’s intention following the demolition of the garages was not to use the way for access to the garages or even to the garage land, but to use it illegitimately for access to the new car parks, and that this was inconsistent with use in accordance with the terms of the grant. He submitted that the dominant tenement was effectively destroyed beyond restoration, the garage site being converted from a terminus to a way, and that it cannot have been contemplated that the right would ever be required for use to and from garages on the garage land ever again. He also pointed to the fact that the actual use was not only unlawful, as being for the benefit of different dominant land, but also that it was significantly greater in volume because of the greater capacity of the car parks as compared with the three garages.
[32] So far as the unlawful and excessive use is concerned, Mr Banwell relied upon the case in this court of Graham v Philcox [1984] QB 747, in the course of which May LJ said, at p756D:
However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement…
[33] He then referred to the then current edition of Gale on Easements. He continued:
The owner of the servient tenement upon which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained. The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement. Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant.
The judge did not expressly refer to that case, but it had been cited to him and it must have been in his mind as the basis of [8] of his judgment, in which he makes a very similar point.
[34] It is fair to say, as Mr Hamlin submitted, that this was a very different case on the facts, without any element of significant structural alteration of the dominant tenement. The point as to excessive or unlawful use by itself is the same, but Mr Hamlin was entitled to submit that this does not help on the question of whether, on the facts of this case, the works undertaken to the pink land, and to the rest of the respondent’s predecessor’s site, demonstrate an intention to abandon.
[35] He was also entitled to submit that the judge refers, in [7] of his judgment as transcribed, to the question of “abandonment” as being based upon the demolition alone, and that, in [10], he perhaps brings into account later material that he ought properly not to have done in deciding what inference should be drawn as to the intention of the dominant owner at the time of the acts relied upon to show abandonment.
[36] Despite those points upon which the judge misdirected himself, and even assuming that his construction of the grant was wrong in taking it as permitting access to the site of the former garages following demolition, one has to come back to the question of whether the dominant owner’s conduct was such as to make it clear that its firm intention at the relevant time was that neither it nor any successor in title should thereafter make use of the easement, an inference, as Buckley LJ says, not likely to be drawn.
[37] In my judgment, substantial as the works were, and as reinstatement works would have been, and no doubt have been, they do not justify an inference that the then owner intended to abandon the right of way forever so that neither it nor its successors could ever resume its exercise. It is common ground that demolition of the garages, with or without failure to use the way, even for a long period, would not be enough. The fact that the way continued to be used unlawfully does not, as it seems to me, bear on the point either way.
[38] Of course, it could have been the case that the original garage use of the pink land was never reinstated, in which case the question would not have arisen, or at least not in the form in which it has arisen. But, in my judgment, on its facts, and accepting, as Mr Hamlin submitted, that it is ultimately a matter of impression, and that there might be cases in which second impressions are better than first impressions, my impression is that this is not a case in which the burden of showing an inference of abandonment was discharged by the appellant. Accordingly, I agree with the judge’s conclusion, although not with all of his reasoning, and I would dismiss the appeal.
Latham LJ said:
[39] I agree.
Giving the second judgment, Brooke LJ said:
[40] I agree. I am adding this short judgment of my own to address certain procedural difficulties that arose in this case. The judge gave judgment on 13 July 2004. On 2 August, the appellant’s solicitor attempted to file a notice of appeal without seeking an extension of time. It thereupon set about obtaining the documents that needed to be filed for the purposes of the appeal. These included the order of Judge Rich QC and an approved transcript of his very short judgment. We have been told by the appellant’s solicitor that he attended Central London County Court personally in August and filled in the requisite forms.
[41] When the court order and judgment transcript had not been forthcoming by 17 September, counsel advised him to ring the county court enquiring about their whereabouts, which he duly did. On 3 November, under heavy pressure from the Civil Appeals Office, he reported that he had been chasing the county court for the court order and transcript to no avail, and that he was writing a further letter to them that day. On 4 November, staff at the county court asserted that they possessed no record showing that any party had asked for a transcript. |page:18| Sadly, that court now has a bad reputation for misfiling documents and failing to record telephone messages. On 12 November, the appellant’s solicitor wrote to the county court again requesting a transcript. By this time, the county court had at long last supplied him with a copy of the court order under cover of a letter dated 9 November. This had been completed and prepared for issue on 23 August, more than 11 weeks earlier. Nothing then happened. On 8 December, he had to chase the county court again. This elicited a letter written on 9 December acknowledging his letter written nearly four weeks earlier. The county court then set about what he had asked them to do four months earlier.
[42] A further delay now occurred while the transcribers were seeking and being paid a transcription fee before they were willing to start work. Eventually, the very short transcript was sent to the judge for approval on 10 January, received back with amendments on 26 January, and filed on 2 February 2005, six months after the first attempt to file the notice of appeal.
[43] The problems besetting Central London County Court are very well known to this court. There is a very high turnover of staff there each year and the Court Service professes itself unable, with the resources currently provided to it, to correct the position to any significant extent. I am bound to say, however, that it is intolerable that litigants who pay the court fees required of them should be treated in this way. Despite the valiant efforts made by the staff and lawyers in the Civil Appeals Office to expedite matters, they were effectively thwarted by the non-availability of the judgment transcript so that it took six months before the papers could be placed before a lord justice to consider whether to grant permission to appeal.
[44] In the meantime, the marketing of this small residential development has been seriously prejudiced by the Central London County Court delays. Because of the uncertainty arising from the fact that an appeal was pending, the developers were unable to market the three housing units for which the three garages had been erected. Since there was no stay on the judge’s order, they attempted to enforce that part of it that obliged the appellant to remove the obstacles from the right of way at his own expense by 24 August 2004. These attempts, however, ran into the sand. Fortunately, this court was able to offer a reasonably early date for the hearing of the appeal.
[45] I direct that a copy of this judgment be sent to the director within the Court Service who is responsible for civil business in the London region and to the Master of the Rolls as the head of civil justice. Somehow, a way must be found of ensuring that Central London County Court provides a service of the quality that litigants in that court and their legal advisers, and the staff, lawyers and judges of the Court of Appeal should be entitled to expect from those whose business it is to serve the courts and the members of the public who use them.
[46] I now turn to a quite different matter. In my unreported judgment, in Scribes West Ltd v Relsa Anstalt (No 1) [2004] EWCA Civ 835*, I described in meticulous detail the new requirements of the practice direction to CPR 52, which had been substantially amended and were about to come into effect in their amended state. I ended my judgment in these terms in [31]:
[31] It will have become evident that the judges of the Court of Appeal attach great importance to the need for all the papers for an appeal to be filed at least seven days before the hearing. Except in relation to very heavy cases, the judges are likely to do their own pre-reading for an appeal on any day within that seven-day period, and they cannot do this usefully if future papers are likely to meander in to the Civil Appeals Office after they have completed their pre-reading. This is why all the skeleton arguments must now be filed at least seven days before the hearing (see para 27 above) and the agreed bundle(s) of authorities must be lodged at least seven days before the hearing (see para 29 above). The great importance which the judges will attach to strict compliance with this timetable is underscored by para 15.11B (entitled “Papers for the appeal hearing” which provides:
“(1) All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing. Where a document has not been filed 10 days before the hearing a reminder will be sent by the Civil Appeals Office.
“(2) Any party who fails to comply with the provisions of paragraph (1) may be required to attend before the Presiding Lord Justice to seek permission to proceed with, or to oppose, the appeal.”
Practitioners who receive a summons to attend before a presiding lord justice during this final week would do well to ensure that all their documents have been filed before the encounter takes place. This rule will mean what it says.
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* Editor’s note: Reported at [2005] CP Rep 2
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[47] In the present case, the respondent’s counsel unilaterally filed a bundle of the authorities upon which he intended to rely some weeks ago when his skeleton argument was filed. For whatever reason, Mr Hamlin, counsel for the appellant, did not file any bundle of authorities until two days ago, and the three bundles had not reached the members of the court before they sat in court for the hearing of the appeal. This is a good example of the difficulties that the practice direction was designed to mitigate. We did not enquire as to the reasons for the delay on the appellant’s side, but on the evidence of this and other recent cases it is quite clear that standards are once again slipping.
[48] As Vice-President of the court, I wish to make it clear that the requirements of the practice direction are there to be obeyed and that those who fail to comply with them may encounter an increasing unwillingness on the part of the judges of the court not to enforce the sanctions that are available to them. These include refusal to allow an appellant to proceed with an appeal.
[49] Since I delivered this judgment orally I have been told by Mr Hamlin that he had been pressing his solicitor for the appeal papers ever since 3 March 2005, when he learnt that permission to appeal had been granted. He did not receive the correct appeal bundle until 29 April, six days before the appeal was due to be heard. It appears that his solicitor, in turn, had not been put in funds by his client to prosecute the appeal until this very late stage. Since we did not hear argument in relation to this dilemma, it is sufficient for present purposes to remind appellants’ advisers of their obligations under CPR 1.3. The court’s needs are very clearly set out in [31] of the judgment in Scribes West.
[50] Practitioners who are unfamiliar with Court of Appeal practice would do well to acquaint themselves and their staff with the requirements of the practice direction to CPR 52. My judgment in Scribes West, although still unreported, is available on the Internet (see para 52.17 of The White Book vol 1 2005, at p1453), and its effect is now summarised in the 2005 edition of The White Book: see in particular vol 1, para 52.4.5, at p1466, and in paras 52.12.2 to 52.12.5, at p1480). The text of the judgment is also set out in full in vol 1 of the 2005 edition of the civil court practice (The Green Book), at pp1024-1029. Ignorance of these provisions will, to an increasing extent, not be accepted very willingly by members of this court.
[51] For the reasons given by Lloyd LJ, with which I also agree, this appeal is dismissed.
Appeal dismissed.
