Joyce v Epsom and Ewell Borough Council

Proprietary estoppel – Right of way – Respondent council owning service road to rear of appellant’s property – Respondents encouraging appellant’s predecessor in title to build garage and driveway with access onto rear service road in belief that right of way enjoyed over road – Whether appellant entitled to right of way by proprietary estoppel – Whether unconscionable for respondents to refuse to recognise right – Appeal allowed In 2007, the appellant purchased a residential property comprising a chalet bungalow with access onto the street at the front. There was also a garage and driveway with a gate, which permitted vehicular access to the rear of the property from a private service road. That access had been formed in the 1990s, in the context of a grant of planning permission by the respondent council for a supermarket development. The service road was constructed on land owned by the respondents in response to concerns expressed by residents, including the appellant’s predecessor in title, regarding traffic and access issues relating to the development. It was never adopted as a highway and remained a private road in the respondents’ ownership. The garage and driveway were constructed by the appellant’s predecessor in title on a 3m strip of land that he had requested from the respondents in order to provide him with access to the service road; that strip comprised part of two neighbouring properties that the respondents had acquired and demolished to facilitate the development. The developer paid to have the gate installed to give access from the driveway onto the service road. However, the strip was never actually transferred to the appellant’s predecessor. The appellant planned to develop the property by erecting further dwellings. In correspondence with the respondents on the issue of access, the respondents indicated that they required payment of a £5,000 premium for the grant of a right of way over the service road, which would be restricted to the dwelling that stood on the property.The appellant claimed that he was entitled to a free and unrestricted right of way over the service road by proprietary estoppel. That claim was dismissed in the county court. The judge found that the appellant’s predecessor had acted to his detriment by carrying out works in the belief, encouraged and allowed by the respondents, that he would have a right of way over the service road. However, the judge concluded that the respondents were not acting unconscionably in refusing to recognise the right since they had not known of the works and, in any event, were not seeking to prevent the appellant from using the road but were merely refusing to grant an easement save on specified terms. The appellant appealed. Held: The appeal was allowed.(1) On the evidence, the respondents must have known that the appellant’s predecessor in title planned to undertake, and had undertaken, some works on or near the strip to make the rear access viable. In any event, it was not an invariable requirement, in a case involving encouragement resulting in detrimental reliance, to prove that the person doing the encouraging knew just what the person encouraged had done in reliance on the encouragement: Crabb v Arun District Council [1976] 1 Ch 179 and Taylors Fashions Ltd v Trustees Co Ltd [1982] QB 133; sub nom Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1979] 2 EGLR 54; (1979) 251 EG 159 applied. All would depend on the particular facts of the individual case. Consequently, lack of knowledge could not be used to justify a conclusion that the respondents had not acted unconscionably. (2) Nor was it relevant, in that regard, that there was no evidence of the respondents preventing the appellant from using the road or that they proposed to do so. That fact addressed neither the question of the appellant’s predecessor’s entitlement nor the issue of unconscionability arising from the respondents’ initial conduct at the time and then their subsequent resiling from their position. By demanding £5,000 for the grant of a right of way, the respondents were in effect denying that the appellant had any right of way over the road. If they were to revoke the right of access, that would operate to defeat the expectation that the appellant’s predecessor had been found to hold, and that the respondents had been found to have encouraged, that he could freely access and use the road from the gate. The case could equally be regarded as one of a mutual understanding falling short of a contractual bargain. The respondents had wanted the planning scheme for the supermarket to go through. They were legally obliged at least to take account of objections from affected residents such as the appellant’s predecessor in title. They would also have wanted, so far as practicable, to accommodate residents’ concerns, provided that could be achieved in accordance with the overall interests of the proposal and of local council taxpayers. The provision of the rear access was mutually intended and understood to be a means of addressing, with the concurrence of the supermarket, the concerns of the appellant’s predecessor with regard to the supermarket development and its highway and access implications for his property. Consequently, the equity of the situation required that the appellant’s predecessor, and consequently the appellant, had a right of way over the access strip. It would be unconscionable for the respondents to resile from their encouragement and assurance to that effect given at the time, and on which the appellant’s predecessor had relied to his detriment. (3) The minimum equity required to do justice to the appellant was the grant of a right of way over the service road, without payment of a premium, in order to serve the single dwelling currently on the property. The appellant was not entitled to any more extensive right to accommodate his development plans. There was no evidence that the appellant’s predecessor had harboured any expectation of future development of the property or that he had wanted a vehicular access any more extensive than was required to serve the single dwelling on the property at the time. The appellant could not be in any better position that his predecessor. Jeremy Burns (instructed by direct access) appeared for the appellant; Robin Green (instructed by the legal department of Epsom and Ewell Borough Council) appeared for the respondents.   Sally Dobson, barrister