Proprietary estoppel: successor of representee claiming the formal grant of a right of way

In Joyce v Epsom and Ewell BC ([2012] EWCA Civ 1398) a supermarket chain built a store near J’s property (at that time J’s property was owned by his predecessor H). An access road was built from the public highway to the supermarket on land to the rear of J’s property privately owned by the Council. During the procedure leading to the grant of planning consent for the supermarket, H was given to understand by the Council that he would have an easement over the private road from the rear of his property to the public highway. The supermarket built a new fence and gate at the rear of H’s property and H moved the garage on his property to make use of this access point and built a new drive between the access and the garage. H then used the private road as envisaged.

J was now the owner of H’s property. He was a developer intending to develop his property (perhaps jointly with neighbouring properties). He relied on proprietary estoppel to claim the formal grant of an easement in terms that would allow the access to serve the joint development of his property and the neighbouring properties. The Council denied that there was an estoppel but they did not (in their pleadings) deny that if there were an estoppel then the benefit of it would pass to J.

The proprietary estoppel claim failed at first instance because the judge thought that, while the central elements of proprietary estoppel were present, the Council had done nothing that was unconscionable. It allowed J to use the access point. It was simply refusing to make a formal grant. There was nothing unconscionable in this refusal.

On appeal, J successfully argued that the formal grant of the easement was the only response that was fair and proportionate as between the parties ([48]) (the English Court of Appeal’s re-casting of ‘the minimum equity to do justice to the plaintiff’ following Jennings v Rice). Davis LJ thought that this was ‘a case of mutual understanding, even if falling short of a contractual bargain.’ ([46]).

The fact that J was, in fact, being allowed to use the road was no answer to the claim:

‘The fact that the Council had not thus far sought to prevent Mr Holborn (or his successors after him) from using the road does not address what his entitlement was or the issue of unconscionability arising from the Council’s initial conduct at the time and then its subsequent resiling from its position as indicated in May 2010.’ ([42] Davis LJ)

The fact that time had elapsed between the assurance and the proceedings did not mean that J was only entitled to a lesser relief than that which would have been available had the proceedings been brought earlier ([45]).

The formal grant should be limited to use of the present single dwelling on the property and not for any more extensive purpose ([51]).

Davis LJ also decided that there was no requirement for the representor to know of the acts of detrimental reliance of the representee ([39]).

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