Joyce v Epsom and Ewell Borough Council

This appeal concerns a claim to a right of way over a private road in Epsom. The nature of the dispute is such as to make it particularly unfortunate that it has proved necessary to litigate the matter not only to trial in the Guildford County Court but also now on appeal to the Court of Appeal. Pragmatic compromise has eluded the parties.

The claim was, and is, founded on a proprietary estoppel alleged to arise in favour of the claimant, Mr Martin Joyce, as current owner of a property known as 111 East Street, Epsom. The events relied on, however, date back to a period between 1991 and 1993 when the then owner of 111 East Street was a Mr Geoffrey Holborn. At all relevant times the land over which the road was constructed has belonged to the respondent defendant, Epsom and Ewell Borough Council (“the Council”).

The trial was conducted before HHJ Reid QC, who is of course very experienced in such matters. His conclusion, set out in a reserved judgment handed down on 17^th January 2012, was that the claimant had failed to establish that the Council had acted unconscionably in refusing to accept that the claimant was entitled to a right of way over the road in question. His decision thus was that the claim of proprietary estoppel failed. He accordingly dismissed the claim, and ordered the claimant to pay two-thirds of the Council’s costs. He refused the claimant permission to appeal: but permission was subsequently granted by Patten LJ.

The claimant was represented on this appeal by Mr Jeremy Burns, who also appeared below. The Council was represented on this appeal by Mr Robin Green, who did not appear below.

The background facts are set out fully and clearly by the trial judge. Although oral evidence was given by the claimant himself and by Mr Smith, the current Property and Estate Manager of the Council, the judge commented that neither had first hand knowledge of events at the relevant time. Mr Holborn did not give evidence. As the judge stated, the relevant evidence was essentially documentary.

A detached chalet bungalow stands on 111 East Street, which occupies a site of some 0.15 acres. The front access is on to East Street, which runs east from the end of Epsom High Street. Kiln Lane runs north from East Street.

By the late 1980s proposals were being made to develop a site, which may loosely be called for present purposes the Peel site, to the north of East Street and east of Kiln Lane (and so to the rear of the properties in East Street). In June 1991 the supermarket group Sainsbury’s put in a planning application for a supermarket complex off Kiln Lane, in part extending over the Peel site. Nos. 107 and 109 East Street were designated, under the scheme as originally proposed, to be acquired and demolished by Sainsbury's in order to facilitate access and landscaping. The Council was very keen in principle for the Sainsbury’s scheme to go ahead.

The proposal naturally raised concerns among local residents, including residents (both private individuals and commercial occupiers) of East Street. Some were concerned with the visual and disruptive effects of the supermarket scheme; others with traffic and access implications; others again with both. At that time vehicular access to the houses on East Street was gained (to the front of the properties) solely from East Street itself. There was no such access from the rear (north side) of the properties.

Mr Holborn, then owner of 111 East Street, was one of the concerned residents to write to the Council. In his letter to the Council dated 7^th October 1991 he expressed his displeasure with the entire scheme and indicated his opposition to the grant of planning permission. He, however, annexed a plan and made a number of points on the footing that the scheme might go ahead, proposing the construction of a “rear service road” (as he styled it) at the back of the properties in East Street. He described it as a “must” in order to keep traffic flowing in East Street itself and to reduce a risk of accidents from residents entering or leaving their drives fronting East Street. He also expressed concerns about the implications for his property if 107 and 109 East Street were demolished. He then said this:

The initial planning application of Sainsbury's was considered by the relevant committee of the Council in November 1991.

During early 1992 various residents of East Street continued to write to the Council. Some expressly requested – as had Mr Holborn – rear vehicular access for their properties. Others were not so keen, being concerned, among other things, about the security implications.

The planning proposals of Sainsbury's had in the meantime changed. They lodged a new application. Among other things, instead of constructing an access way requiring demolition of 107 and 109 East Street, Sainsbury's proposal now was that Kiln Lane be developed and used so as to provide the access for visitors to the supermarket, via a roundabout to be constructed on Kiln Lane some distance to the north of the junction with East Street: with an access road from the roundabout then leading to the supermarket complex to the east. There was provision for appropriate landscaping.

On 19^th March 1992 the Planning Committee considered this proposal. The report to the Council under “Other Considerations” had included this passage:

There were then further discussions and adjustments to the access proposals. There were meetings with (among others) Mr Holborn. On 7^th April 1992 a report proposing an item for decision at a Council meeting included a proposal that an access road to the rear of 111 and 113 East Street be included in the terms of a s.106 Agreement, with retention of a further strip for possible access to 115-119 East Street if required at a later date.

On 11^th April 1992, and following a meeting with a representative of the Council, Mr Holborn wrote again to the Council “confirming our interest in the rear access via Kiln Lane” and also stating his interest in the acquisition of a (minimum) six foot strip of land along his boundary with 109/107 East Street.

Full planning permission was granted to Sainsbury's on 16^th December 1992.

A s.106 Agreement was concluded on 18^th December 1992 between the Council and Sainsbury's. Clause 1(xi) imposed an obligation on Sainsbury's in these terms:

A s.111 and s.278 Agreement was then made between the Council, Highway Authority and Sainsbury's (and others) on 18^th March 1993. Among other things, paragraph (n) of schedule B required the provision of a “private vehicular access to the rear of properties fronting East Street accessed from Kiln Lane”.

It seems some of the other residents in East Street then had a change of heart and indicated that they wanted the rear access road to extend to their properties also. The present rear access by then had been constructed to a width of around three metres at the back of 111 and 113 East Street. Following a report from the relevant officer, the Planning Committee decided on 22^nd July 1993 that the road should not be so extended.

On 27^th September 1993 Mr Holborn wrote to Sainsbury's (copied to the Council). He referred to a recent meeting and confirmed that an extension of the fence line to the rear from 2 metres (in fact, more precisely, he had previously asked for a minimum of 6 feet) to 3 metres had been agreed which would “facilitate the installation of the 3 metre gate which you have offered”. He recorded the Council as having said previously to him that it had seen no major problem with this “slight change”. It was common ground that such fence of 3 metres with gate (in fact, in the form of double gates) was thereafter so constructed: Sainsbury's bore the cost. That gate thus gave 111 East Street access to the new service road. It was duly incorporated into the extra strip which Mr Holborn had previously requested by his letters of 7^th October 1991 and 11^th April 1992, as increased in size as further requested by his letter of 27^th September 1993. It seems that Sainsbury's also fenced off this strip at the side of no. 109. Sainsbury's further constructed a similar 3 metre gate for 113 East Street.

At around this time as the judge found (and as is not challenged) Mr Holborn constructed a paved or hard-core driveway from his new gate at the rear of 111 East Street to a pre-fabricated garage which he had moved to stand at the end of the 3 metre strip.

Since that time Mr Holborn and thereafter his successors in title (as also, presumably, the owners for the time being of 113 East Street) have used the rear double gates for vehicular and other access to the service road. The same road remains a private road – we were told that it has not been adopted – and, as is common ground, it remains legally vested in the Council. There has been no subsequent extension of the road to the rear of other properties in East Street.

The claimant acquired 111 East Street in May 2007 from a Mr and Mrs Conway, who had themselves purchased from Mr Holborn. The claimant is a property developer. He had apparently applied for planning consent for a bungalow at the rear, which was refused, and retains ambitions for development of 111 East Street, either alone or together with 109/107 East Street (owned by Sainsbury's). We were told that his plans have at one stage extended to erecting a block of flats. He entered into correspondence with the Council concerning the access. The Council indicated by letter dated 6^th May 2010 that it required £5,000 as a premium for a grant of the right of way sought, which was also to be (as the Council stipulated) restricted to the dwelling house currently on 111 East Street. For his part, the claimant considered that he was, as successor to Mr Holborn, entitled to a free and unrestricted right of way over the service road. Thus the dispute crystallised.

The claim form was issued on 4^th August 2010.

One of the principal issues before the judge was the argument of the Council – described by the judge as its “primary defence” – that the grant of a right of way could not have arisen by virtue of the doctrine of proprietary estoppel because (so it was asserted) it would have been ultra vires the Council for it to have granted a right of way for (so it was asserted) no consideration.

The judge disposed of that point in a way which cannot possibly be criticised (and indeed there is no appeal against his conclusion). He concluded, having assessed the evidence, that the grant by the Council of an easement to Mr Holborn (without demanding payment from him) would have been “part of the entire ‘deal’”. He found that had the matter been more fully considered at the time “no doubt steps would have been taken to ensure that a formal grant was executed at the time but it is easy to see how such an apparently inconsequential detail was overlooked”. The judge also said this:

The judge then turned to the issue of proprietary estoppel. He referred to relevant authorities cited to him.

Before the judge it was common ground that the claimant effectively stood in the shoes of Mr Holborn and was entitled to the benefit of any proprietary estoppel (if one did arise) in favour of Mr Holborn. No argument or pleaded case to the contrary having been advanced below, it is not now open to Mr Green – as some aspects of his argument on behalf of the Council to us seemed to suggest – to go behind that. As for the claimant, his case was that such right as he had was entirely derived (via Mr and Mrs Conway) from Mr Holborn. The claimant did not assert any facts relating to himself personally to support the claim of proprietary estoppel.

The judge directed himself as follows:

The judge went on to find as a fact that the Council “clearly encouraged and allowed” Mr Holborn to believe that he would have a right of access over the road. That was a justified finding and cannot be and is not challenged on this appeal.

As to reliance and detriment, the judge held that there was ample evidence of reliance on the part of Mr Holborn. On detriment, he held that there was no sufficient evidence to support the proposition that Mr Holborn ceased to oppose the development because of the offer of the rear access. But he held that the labour undertaken by Mr Holborn (even if there was no evidence of the expenditure actually incurred by him) in laying the hard core drive at the rear and moving the garage was sufficient detriment to found an estoppel. Although Mr Green, by Respondent’s Notice, sought to challenge that finding and also sought to draw attention to benefits Mr Holborn allegedly received by reason of the Council’s stance I can see no proper basis for so interfering with the judge’s conclusion on this point. Indeed, the only real benefit to Mr Holborn was the access to and over the service road: and of course it is the extent of his entitlement to this access which is precisely the matter in dispute.

On the question of knowledge, however, the judge’s findings were as follows:

The judge went on, nevertheless, to find that Mr Holborn – who at all times acted in person – could not be criticised for assuming that he could use the 3 metre strip, notwithstanding he had not received a formal transfer of that land from Sainsbury's: the judge said “it is unreasonable for the Council to suggest that, in relying on a boundary agreement of the type he had with Sainsbury's and approved by the Council, he was acting recklessly”.

The crucial conclusions of the judge in dismissing the claim are contained in paragraphs 81 and 82 of the judgment. It is necessary to set them out in full:

Mr Burns, in advancing the appeal, in essence made the following arguments (albeit they were fully elaborated):

The judge’s finding as to lack of knowledge on the part of the Council was not justified on the evidence; and in any event, in the circumstances, it did not bear on the proper outcome of the present claim for proprietary estoppel.

If necessary, there was yet further detriment, if only in that Mr Holborn desisted from his objections to the supermarket proposals in the light of the assurance as to the rear access road.

The judge failed to consider unconscionability “in the round”; and in particular failed to apply the flexible approach indicated in cases such as Taylors Fashions Limited v Liverpool Victoria Trustees Co. Limited [1982] QB 133 and Gillett v Holt [2001] Ch. 210. The correct question for the judge to have asked himself, submitted Mr Burns, in effect came to this: would it have been unconscionable for the Council, having encouraged Mr Holborn to think that he was getting a free right of way, to wait until he acted to his detriment in reliance on that encouragement and then resile by demanding money for the formal grant of the right? The answer, he submitted, has to be “yes”.

The judge was simply not justified in his assessment of unconscionability, in purportedly relying on the proposition that there was no evidence that the Council was preventing Mr Joyce from using the road or proposed to do so.

Mr Green (apart from seeking to challenge certain of the judge’s findings, which challenge I have rejected above) in essence submitted that the judge’s conclusion on unconscionability was justified: and his evaluation, as trial judge, should be respected.

It seems to me that Mr Burns’ principal arguments are correct.

The first point is that I would not agree with the judge’s finding that Mr Holborn’s works were done without the knowledge of the Council. I appreciate this is a factual finding. But as this was essentially an inference from the documentary evidence this court is as well placed as the judge to assess the matter. Mr Holborn had made clear his intention (by the letter of 7^th October 1991) of erecting a garage on the strip he proposed to acquire in order to take advantage of the proposed rear access: an obvious and predictable step. Sainsbury's detailed planning proposals may thereafter have changed; but that would not have mattered to Mr Holborn and it is evident that Mr Holborn’s intentions, as the Council knew, thereafter did not change. This is confirmed by his letters of 11^th April 1992 and 27^th September 1993, provided to the Council. These continued to be directed at his rear vehicular access via the strip, even if they did not specifically repeat reference to a garage. Thereafter he did use the 3 metre rear gates for vehicular access to and over the road. Even if the Council may not have known the exact details of the works Mr Holborn undertook, it must have known that he both would undertake and had indeed undertaken some works on or near the strip (including the expressly indicated garage, and also, foreseeably, some appropriately paved driveway from the double gates) to make viable the rear access intended to be used.

The second point is that, in any event, I do not think that the alleged lack of knowledge on the part of the Council of the precise works actually undertaken by Mr Holborn can have the crucial significance the judge seems to have ascribed to it. As the judge had himself found, this was a case of encouragement, on which there was in fact detrimental reliance. It was known what Mr Holborn intended to do. It is not an invariable requirement in a case of this particular kind – indeed it is contrary to the flexible approach which the more recent authorities establish – that the person encouraging necessarily must know just what the person encouraged may have actually done in reliance on the encouragement: see, for example, Crabb v Arun District Council [1976] 1 Ch. 179 at p.189 D-E (per Lord Denning MR) and at pp. 197H-198E (per Scarman LJ); and Taylors Fashions at p.151 (per Oliver J). Mr Green himself very fairly accepted in argument that this could be so: he acknowledged that cases of encouragement are capable, depending on the circumstances, of standing in this respect on a different footing from cases based on acquiescence. But ultimately, of course, all depends on the particular facts of the individual case.

The judge seems to have placed some reliance on clause 1(xi) of the s.106 Agreement made on 18^th November 1992 to support his conclusion on this issue of knowledge. But in my view that does not really bear on the point at all. For one thing, Mr Holborn was never party to such an agreement, was not bound by it and clearly did not even know of it. For another, as the Council itself would have known, there never was any transfer of the strip of land, let alone one containing a covenant requiring Mr Holborn not to have any development on the strip of land other than the fence.

Accordingly, the first basis expressed in paragraph 82 of the judgment (viz lack of knowledge) for the judge’s conclusion on unconscionability cannot, in my view, be sustained. The second basis for the judge’s conclusion was, of course, that there was no evidence that the claimant was being prevented from using the road or that the Council proposed to prevent him from doing so.

I simply do not understand this as a relevant basis for the overall conclusion. 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.

Mr Green in the course of his argument seeking to endorse the judge’s conclusion acknowledged that at the least there was a “tension” between the judge’s proposition here and the issue of the Council resiling from its assurance or encouragement. Nevertheless, Mr Green’s argument was to the effect that Mr Holborn was simply a tolerated trespasser or, at best, the possessor of a revocable licence. In fact, as it seems to me, by its subsequent conduct (in demanding £5,000 for the grant of a right of way) the Council had in effect denied that the claimant, as successor of Mr Holborn, had any right of way over the road.

In my view, if the Council were to revoke the right of access then any such revocation would operate to defeat the very expectation which the judge himself had found Mr Holborn held, as encouraged by the Council: viz that he could freely access and use the road from his double gates. Again, to adapt the question and answer the judge had himself posed at paragraph 70 of his judgment, it is to my mind “inconceivable” that the Council could have asserted in 1993, once the road was built and the garage and drive constructed, an entitlement at any time to revoke any right Mr Holborn may then have had over the road: any more than it could have sought £5,000 from him for a formal grant of right of way.

The position, I might add, cannot become any different by reason of the lapse of time, as Mr Green at one stage – and by way of yet another argument not pleaded or advanced below – seemed to assert. In truth it is both counter-intuitive and unprincipled that an apparent right arising and exercised in reliance on the assurance given by the Council to Mr Holborn has become something of a “lesser” right, and the equity arising has somehow diminished, simply by virtue of long exercise.

In many ways this case, I think, can equally be regarded as in effect a case of mutual understanding, even if falling short of a contractual bargain. The Council wanted the planning scheme to go through. It was legally obliged at least to take account of objections from affected residents such as Mr Holborn. As a good council it would also have wished, so far as practicable, to accommodate their legitimate concerns, provided, of course, such accommodation could be achieved in accordance with the overall interests of the proposal and of local council taxpayers. It perhaps may be going too far to say that the evidence showed that Mr Holborn refrained from further objections to the planning application in the light of the encouragement he received as to the rear access. But it is at the very least clear enough that the provision of such rear access was mutually intended and understood to be an addressing by the Council, with the concurrence of Sainsbury's, of the concerns of Mr Holborn and of the owner of 113 East Street with regard to the supermarket development and its highway and access implications for their properties. That seems in fact to have been reflected in the judge’s own approach (in the section of his judgment dealing with the ultra vires point). There he had focused on the overall “deal”, as he himself described it, and the desirability, from the point of view of the scheme as a whole, of the road as an access to the rear of 111 and 113 East Street. The judge, however, seems by his conclusion in paragraphs 81 and 82 of his judgment to be now in effect accepting as permissible that which he had regarded as “inconceivable” at the time the road was being built.

Accordingly, and with all respect to the judge, I think that his conclusion on unconscionability was wrong. The equity of the situation requires that Mr Holborn had (and in consequence the claimant as his successor has) a right of way over the access strip; and it would be unconscionable for the Council to resile from its encouragement and assurance to that effect given at the time and on which Mr Holborn had relied to his detriment.

That leaves the final question: what does equity require in order to do justice to the claimant? Although the not unfamiliar phrase “the minimum equity to do justice to the plaintiff” was used by the judge, and deployed in argument before us, the overall focus has to be on what is fair and proportionate as between the parties: cf. Jennings v Rice [2003] 1 P&CR 8 at para 36 (per Aldous LJ) and paragraphs 50 and 51 (per Robert Walker LJ).

The judge, notwithstanding that he had rejected the claim, very helpfully went on to indicate in paragraph 83 of his judgment what his conclusion would have been had he concluded that the Council had acted unconscionably. His view was that he would have granted an easement limited to use of the present single dwelling on the property. The judge thought that a right of way for all purposes, no matter how the site might be redeveloped, would “far exceed” the necessary equity. This view must weigh with us, although of course it is not decisive. The point is of some significance in view of the claimant’s current planning aspirations.

Mr Burns bluntly submitted that this conclusion of the judge was unsustainable. He criticised the judge for stating that there was no evidence that Mr Holborn ever contemplated a redevelopment of the site. He asserted that was the wrong way round: there was no evidence that he did not and the reality of the matter, he argued, was that an entirely unrestricted right of way for the benefit of the entire site of 111 East Street would have been granted at the time had a formal grant been sought. At all events, he said, the Council had not indicated such a restriction at the time: it should not be permitted to do so now.

In my view, the judge’s assessment was justified. One has here to have regard, among other things, not only to the extent of the detriment, as found, actually suffered by Mr Holborn in reliance on the encouragement but also to his expectation. He clearly was concerned about potential devaluation of his property by the scheme. There is, however, nothing to show – to the contrary – that he engaged in any grandiose access works near the rear gates compatible with potential future development. Moreover, there is also nothing to show – to the contrary – that Mr Holborn had at the time any expectation of future development of 111 East Street or had in mind, or had any wish for, any vehicular right of way more extensive than one serving a sole dwelling house at 111 East Street. That the claimant himself is a developer, harbouring development plans, is nothing to the point: he cannot be in any better position than Mr Holborn.

Furthermore, the road was and remains a private road, for the upkeep of which the Council was and is responsible: it does not seem obviously right that it should now at its own cost have to face, or would have accepted at the time, more extensive maintenance obligations if vehicular traffic were to be increased by a significantly greater number of cars going to or from the site at 111 East Street (or, for that matter, 113 East Street) as might result from future development, depending on any planning permission granted.

Mr Green did suggest in his Respondent’s Notice that a licence personal to Mr Holborn for the duration of his ownership would suffice to satisfy the equity arising. Given all the circumstances, I disagree.

I would allow the appeal. I would declare that the claimant as owner of 111 East Street is entitled (without payment of any premium) to the grant of a right of way, with or without vehicles, over the service road. However, such right of way is limited to serving a single house on the property. Counsel should prepare a minute of order including a declaration drafted in appropriate terms. One would envisage that a subsequent Deed of Grant to give effect to this can then also be agreed: in case of dispute as to its terms – and it is to be expected there will not be – the matter can be referred to a District Judge or Chancery Master as appropriate for settling the Deed. The parties should also provide written submissions on any consequential directions and orders (including as to costs) in the event that those cannot be agreed.

I agree.

I agree.