CDC2020 Plc v Ferreira

An easement is abandoned only where the dominant owner’s conduct makes a clear and firm intention to relinquish it, including an intention that neither the owner nor successors will use it. Abandonment is not lightly inferred. Demolition of structures, prolonged non-use, substantial redevelopment, difficulty of reinstatement, or unlawful and excessive use do not establish abandonment unless they clearly demonstrate that permanent intention. Unlawful or excessive use may be restrained, but does not itself suspend or extinguish the easement. The assessment is made by reference to the circumstances at the time of the alleged abandonment.

CDC2020 Plc obtained judgment in the Central London County Court establishing a right of way over George Ferreira’s land to three garages on the claimant’s property. The right had been granted in 1964. The garages were later demolished and the route was used to access car parks and other parts of the former hotel site. Judge Rich QC rejected the contention that the right had been abandoned. Permission to appeal was refused by the trial judge but granted by Neuberger LJ. The central issue was whether the demolition, changed use and substantial redevelopment clearly demonstrated a permanent intention to abandon the right of way.

1. Disposition. The appeal was dismissed. Lloyd LJ gave the leading judgment, with which Latham LJ and Brooke LJ agreed.
2. Scope of the grant. The 1964 conveyance granted a right of way over the blue land for purposes connected with the use and enjoyment of the three garages on the pink land. The court proceeded on the appellant’s assumption that the right could not ordinarily be exercised while no garages existed, except for demolition and reconstruction. It did not finally determine that construction point.
3. Unlawful use. Use of the way to reach the basement and ground-level car parks was outside the grant and therefore unlawful. It might have supported a claim to a wider prescriptive right, but no such right was pleaded. Following the principles discussed in Harris v Flower (1904) 74 LJ Ch 127 and Das v Linden Mews Ltd [2002] EWCA Civ 590, the excessive use could have been restrained by injunction. However, the fact of unlawful or excessive use did not itself suspend or extinguish the easement, consistently with Graham v Philcox [1984] QB 747.
4. Abandonment. The governing question, identified from Gotobed v Pridmore 115 Sol Jo 78, was whether the dominant owner’s conduct made clear a firm intention that neither the owner nor successors in title would thereafter use the right. Abandonment is not lightly inferred. Although the demolition, ramps, car parks and likely cost of reinstatement were substantial, they did not establish that permanent intention. The court distinguished the possibility that physical destruction of the relevant subject may cause an easement to cease, illustrated by National Guaranteed Manure Co v Donald (1859) 4 H&N 8, from abandonment of an otherwise resumable right. The conclusion was assessed by reference to the conduct at the relevant time, although future changes that could reasonably have been foreseen were relevant to the overall impression.
5. Procedural observations. Brooke LJ criticised the County Court’s delay in producing the order and transcript. He reiterated that the practice direction to Civil Procedure Rules 1998 Part 52 required appeal documents, skeleton arguments and authorities bundles to be filed at least seven days before the hearing. Non-compliance could result in attendance before the Presiding Lord Justice and sanctions, including refusal to allow an appeal to proceed. Appellants’ advisers were reminded of their obligations under rule 1.3.
6. The order was varied by substituting 13 May 2005 as the relevant date. The claimant had liberty thereafter to enter the land, with the assistance of court bailiffs if necessary, to remove remaining obstructions. £1,500 was ordered on account of costs, with the balance subject to detailed assessment if not agreed. The action was transferred to Brighton County Court.

1. Court of Appeal (Civil Division): [2005] EWCA Civ 611, 5 May 2005. Appeal dismissed and consequential orders made.
2. Central London County Court: His Honour Judge Rich QC gave judgment on 13 July 2004, with the order dated 19 July 2004, finding that the claimant had an enforceable right of way and rejecting abandonment.