Case No: HC 05 02894
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE LEWISON
Between :
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF BEXLEY | Claimants |
- and - | |
MAISON MAURICE LIMITED | Defendant |
Mr Jonathan Small QC and Ms Tamsin Cox (instructed by Assistant Director, Legal Services, Bexley London Borough Council) for the Claimants
Mr Romie Tager QC and Mr Henry Webb (instructed by TG Baynes) for the Defendant
Hearing dates: 1, 2, 3 November; and 5 and 6 December 2006
Judgment
Mr Justice Lewison:
The basic facts | 2 |
Was the ransom strip part of the highway? | 7 |
Acquisition and construction of the highway | 7 |
Extent of the highway | 11 |
Estoppel | 13 |
The basic facts
Maison Maurice Ltd is a wholesale supplier of drinks to the licensing trade. Since 1984 it has occupied property in Bexleyheath known as Butler’s Yard. Originally Butler’s Yard did not abut the highway. It had one vehicular means of access to the north between some shops onto the Broadway, the main shopping street. It had another vehicular means of access along a strip of land to the south, running between two houses and their gardens, and debouching into a residential street called Methuen Road. In the early 1990’s the local authority, the London Borough of Bexley (“the Council”), decided to build a new relief road. This plan was carried into action and in due course the relief road, which was completed in 1991, became known as Albion Road. It is a dual carriageway. The acquisition of land on which to construct Albion Road involved the acquisition of property on the north side of Methuen Road, abutting the southern boundary of Butler’s Yard. The new road ran through the old access to Methuen Road, which was in practice closed off, at least during the construction of the new road. The Council, appearing by Mr Jonathan Small QC and Ms Tamsin Cox, says that it retained a strip of land, which was not dedicated as highway. The strip of land was approximately 0.5 metres wide where it ran along the southern boundary of Butler’s Yard, but was much wider in other places. It was deliberately done so as to enable the local authority to control access to the highway. It was, in short, a ransom strip. This is disputed by Maison Maurice, appearing by Mr Romie Tager QC and Mr Henry Webb, who say that at least where it adjoined Butler’s Yard, the whole of the strip was included in the highway.
On 8 March 1991 the Council granted planning permission for the construction of an access, 4.7 metres wide, from Butler’s Yard onto Albion Road. Nothing was said about the ransom strip, of whose existence Maison Maurice was unaware at that time. The planning permission was granted subject to a condition that the use would cease and the land would be restored on or before 8 March 1994 unless prior approval for an extension had been obtained. The reason for the condition was to enable the situation to be kept under review. That permission has never been renewed.
The new road was opened in April 1991.
As I have said, Albion Road is a dual carriageway. On the northern side of the carriageway there is a footpath. The footpath is mostly paved with white concrete paviours, but it has a key pattern in red brick along the edge further from the carriageway. Beyond the red brick, at least where the footpath runs alongside the southern boundary of Butler’s yard, there is a slightly sloping strip of concrete; and at the northern edge of the concrete, forming the southern boundary of Butler’s Yard, stands a close boarded fence. The Council’s road contractors erected the fence as part of the highways contract, probably in March 1991. They also laid the sloping concrete either as part of the original road contract, or as a later variation of that contract. It is this concrete strip which is said to be the ransom strip. The line of the fence followed the line of the old boundary fence that had separated Butler’s Yard from the back gardens of the houses in Methuen Road. However, the Council’s contractors erected part of the fence in the wrong place at the south eastern and south western corners of Butler’s Yard. The fence in fact enclosed within Butler’s Yard more land than was comprised in Maison Maurice’s paper title. In its claim form the Council claimed possession of those two corners, but Mr Small wisely abandoned both claims; the first at the start of the trial and the second at the conclusion of the evidence. The concrete strip has been swept and kept clear of weeds by the Council and, it seems, the funds to do so have come out of the highways budget.
On 5 March 1990 the Council had served on Maison Maurice both a notice to treat and a notice of entry pursuant to the London Borough of Bexley (Bexleyheath Southern Relief Road) Compulsory Purchase Order 1987. Both related to the access strip that had been used by Maison Maurice to gain access to Methuen Road. However, the necessary conveyancing took some time to complete. It seems that a draft transfer was sent to Maison Maurice’s solicitors on 5 May 1992. On 12 May 1992 Maison Maurice’s solicitors asked for confirmation that a small sliver of land at the north of the access strip that was to be transferred, shown brown on the transfer plan, directly abutted onto the publicly maintainable highway. The Council confirmed this on 29 May 1992. By a transfer dated 22 March 1992 (but evidently backdated) Maison Maurice Ltd transferred the access to Methuen Road to the Council. However, the transfer reserved a vehicular right of way over a small portion of it, 4.7 metres wide. This was the sliver of land coloured brown on the plan which had been the subject of the previous query. This 4.7 metre right of way coincided with the width of the access for which planning permission had been granted.
Shortly after the new access and gates had been constructed Maison Maurice realised that because the access was on a blind bend in the new relief road, was close to a set of traffic lights, and was relatively narrow, it was not safe. They raised the point with officers of the Council, but obtained no satisfactory response. On 14 August 1992 their solicitors wrote to the Council suggesting that it would be in the interests of road safety for the access to be moved further to the east along the boundary of Butler’s Yard. In their letter they said that “our client does of course own a fairly large frontage to the new relief road, and it makes no difference to our client where the gates are situated along this frontage.” The Council’s solicitor took instructions from the Chief Valuer and Estates Officer and replied on 28 August 1992. His reply included the following:
“Your client does not own any frontage to the new road. The Council has a ½ metre strip of non-highway land between the yard and the road. This strip was deliberately left there to prevent unwanted access.”
“No approach has been made to him about moving the access; neither has an approach been made to the Supervising Engineer. He might be prepared to discuss a variation to the location of the access subject to the Council’s costs and cost of works being paid by your client, the Chief Engineer’s approval and the surrender of the existing accessway. He would only be prepared to discuss this after completion of the matter.”
It seems that Maison Maurice’s planning adviser, Colin Luther, wrote to the local authority on 20 October 1993, but the letter has been lost. It is not possible, therefore, to know exactly what it was that Mr Luther asked for. However, in reply to it the Assistant Chief Engineer replied that:
“… moving the access eastwards is acceptable but will be subject to planning permission.”
He did not mention any need to obtain the Council’s permission as landowner. On 10 July 1995 Mr Luther submitted a planning application on behalf of Maison Maurice. He described the proposed development as:
“Moving existing crossover to new position”
The plan attached to the application showed that the existing opening was to be closed and that a new access, 6 metres wide, was to be constructed further to the east, debouching onto a new crossover. A copy of the application (or at least notice of it) seems to have been given to the Council’s Head of Property Services with a request for observations. A reply sent on his behalf to the Head of Planning Control on 20 September 1995 said that Property Services were not in a position to return the formal observation form because they were still investigating the Council’s ownership of the ransom strip and were seeking legal advice. It seems that the Council made a site visit on 28 September 1995. One of the Council’s officers compiled a case sheet recording the views of the various departments within the council. The Chief Valuer was recorded as indicating that consideration of the planning application should not be held up while “we sort out land ownership issues as this might take some time”. The officer noted:
“It seems engineers are happy with the proposed location, and given its more central location it is likely to be more appropriate than the existing position. It is not the position of either valuers or engineers to totally restrict this site from having access to Albion Road, and there have been no problems identified in relation to the use of the existing access. A condition can be used to extinguish the existing access & therefore maintain only one access to the site furthermore the Council hold a ransom strip along the back edge of the footway for the length of Albion Road thereby giving a greater degree of control.”
On 6 October Mr Sidwell, a Group Engineer employed by the Council, sent the highway authority’s formal observations to the Head of Planning Control. His observations included an “informative” saying that the applicant should seek the advice of the Works and Contracts department and also the following:
“[NOTES: The applicant must seek the issue of a licence from the Local Authority in order that vehicles can be allowed passage across the land owned by the Authority. The land stands between the public highway and Butler’s Yard.]”
On 17 October Mr Sidwell sent a copy of his observations to the Head of Valuation Services, the Head of Planning Control and the Works and Contracts Department. His covering letter said:
“I would be grateful if you could take note of the points made with respect to forming the new access: principally that the new access is subject to the issue of a licence and that the existing access should be closed and the footway reinstated.
You will appreciate that it is still the desire of the Local Highways Authority to maintain control of accesses onto Albion Road in order to preserve its position in the event of a comprehensive development of the area being proposed.”
On 19 October 1995 the Council granted planning permission. It was unlimited in time. One of the conditions attached to the permission was that the existing access onto Albion Way was to be “stopped up and extinguished” before the new access came into use. The standard printed notes accompanying the planning permission said:
“Planning permission does not over-ride any restrictive covenants, or legal rights and interests which other people (including this Council) may have over the land or property.”
On 13 November 1995 Ms Susan Clark, the Head of Planning Control at the Council, wrote to Maison Maurice. She said:
“I refer to the above-mentioned development … and enclose herewith your decision notice granting planning consent.
I would like to take this opportunity to inform you that during the determination of the application the Chief Engineer commented as follows:
“The applicant must seek the advice of the Works and Contracts Department concerning the construction of the new vehicle crossover and the reinstatement of the existing crossover/access. The applicant will be responsible for the cost of reinstating the existing access and the new access.”
I would be pleased if you would take these comments on board before implementing the enclosed consent.”
She did not suggest that anything else was required before implementing the planning permission; and Ms Clark did not pass on the note about the licence that Mr Sidwell had drafted. On 11 December 1995 the Council’s Legal Services Department advised internally that there was indeed a ransom strip that the Council owned. This advice was not passed on to Maison Maurice.
In January 1996 the Council’s Property Services Department asked for advice from the Valuation Services Department. The advice was given by Mr Wilkinson on 9 February 1996. He said that the access to Butler’s Yard which had been the subject to the easement had been granted in order to minimise compensation, although it was recognised that the access was not ideal from a highways point of view. He thought (but was not entirely sure) that there was a ransom strip. Turning to the question whether there should be a charge for the new access Mr Wilkinson first said that there “could be a moral question whether the Council should try and profit from a proposal which might be of benefit to the Highway”. He continued by advising that following implementation of a new planning consent there could be an enhanced site value if the new consent could not be implemented using the existing access. What proportion of the enhanced value would be payable to the Council would be a matter of relative negotiating strength, but a claim of 50 per cent would not be unreasonable. The application that Mr Wilkinson had seen was not, however, for a comprehensive redevelopment. In the absence of a full appraisal Mr Wilkinson could not confirm the likely enhancement in value; but on the basis of what he had seen it did not appear to be significant. He concluded:
“Depending on whether you feel that the Council should charge for the relocation of the access, and a valuation appraisal being undertaken, I would suggest that as a minimum the owners be required to pay the Council’s full costs in surrendering the right to the current access and the grant of a new access. In addition they may be required to reinstate the current access to the Council’s satisfaction.”
Mr Wilkinson confirmed in his oral evidence that unless there was a comprehensive redevelopment of the site, there would be no significant enhancement in value attributable to the moving of the access.
In response to Ms Clark’s letter of 13 November 1995 Maison Maurice engaged the Works and Contracts Department itself, at a cost of £825 which they paid, to construct the new crossover. The paperwork was completed in April 1996. In preparation for the construction of the new crossover, they removed part of their existing boundary wall. The existing access was stopped up and the new crossover was constructed, some time between May and November 1996. There is one factual issue relating to the construction of the new crossover; and that is whether the Council’s Works Department constructed the crossover over the ransom strip, or whether they stopped short at the back edge of the footway forming part of the highway.
Before the construction of the crossover, the back edge of the footway consisted of bricks in a key pattern. When the crossover was built a row of elongated concrete stones (rather like kerbstones) was placed rearwards of the old edge of the footway. Mr Moore, who is an Area Team Manager employed by the Council in the Contracts and Works Department, explained that this was done in order to give the new brickwork a firm edge to butt against. If the Council is correct in saying that the whole of the ransom strip lay outside the highway, then the placing of that row of stones must necessarily have extended beyond the limits of the highway. Mr Jonathan Sundin, a director of Maison Maurice, said that in addition the Council’s contractors laid tarmac over the ransom strip; and that the tarmac went as far as the new gates, and possibly into the yard. Mr Moore thought that this was unlikely; but had no direct recollection. It is not possible to tell from the Council’s computer records whether tarmac was laid or not. Mr Jonathan Sundin’s evidence was corroborated by his father Mr Maurice Sundin and his brother Mr Adrian Sundin, both of whom were directors of Maison Maurice at the time. According to Mr Adrian Sundin (whose evidence in this respect was unchallenged), this is also what happened when the original crossover was constructed on the footway for the access formerly used by Maison Maurice. It was not suggested to any of these witnesses that they were giving untruthful evidence, and only faintly suggested that their recollection was unreliable. I accept the evidence of the Messrs Sundin; and find that the Council laid tarmac over the ransom strip at least up to Maison Maurice’s new gates.
Mr Adrian Sundin also says that following the construction of the crossover, as far as Maison Maurice were concerned, all that had happened was that the right of way had been moved from one location to another. This was in the interests of everyone. He thought that this was the Council’s position too. The Council’s ownership of the ransom strip was not present in his mind. Maison Maurice Ltd incurred additional costs, amounting to some £3,000 - £4,000, in connection with the new access. These costs were incurred on:
Paying contractors to stop up the old access;
Constructing and erecting gates for the new access;
Incidental resurfacing;
Moving storage facilities and
Moving the staff car park.
From then on, until 1998, Maison Maurice used the new access and crossover without objection by the Council. However, on 24 February 1998 one of the Council’s valuers wrote to Maison Maurice saying that:
“It has come to my notice that the access provided to your premises … from Albion Road has been moved and does not now agree with the right of way granted to you in 1993..”
This was the prelude to a series of demands by the Council for Maison Maurice to enter into a temporary licence in return for a relatively modest fee; and then, in the event that planning permission for redevelopment of Butler’s Yard were to be granted, for a substantial payment equating to 50 per cent of the value of the land in return for a permanent right of access. That payment, on the Council’s figures, would have been in the region of £1.25 million.
Was the ransom strip part of the highway?
Acquisition and construction of the highway
Section 24 (2) of the Highways Act 1980 empowers a highway authority to “construct new highways”. Under section 36 (2) (a) of the Act a highway is a highway maintainable at public expense if it is “a highway constructed by a highway authority, otherwise than on behalf of some person who is not a highway authority”. Where a highway is constructed under section 24 (2) there is no formal requirement of dedication as a highway (see Hale v Norfolk County Council [2001] Ch 717, 724). In the present case it is common ground that the Council, which was and is a highway authority, constructed a highway, and that that highway is now called Albion Road. The issue is as to the extent of the highway.
This issue was not originally pleaded, but I allowed an amendment by Maison Maurice, without objection by the Council. However, it emerged that the Council had a considerable volume of documents relevant to this issue and, unfortunately, this necessitated an adjournment of the trial, part heard. At the resumed hearing, the Council produced two files of additional documents, and two further files containing documents recording the contract for the construction of the highway. It is possible from these materials to reconstruct much of the history.
The construction of what was then known as the Southern Relief Road had been first proposed in 1968. By 1977 three sections of the road had been constructed. The work was carried out by the Council, on behalf of the GLC. Completion of the Southern Relief Road was included in the local development plan (sometimes referred to as the action area plan) which was the subject of a public inquiry in 1980 or 1981. The inspector recommended approval of the proposal (both in principle and as to its alignment); and the local plan was formally adopted. The alignment of the Southern Relief Road, as shown on the plan considered at that local inquiry, had the northern edge of the northern footway contiguous with the boundary of Butler’s Yard. (A copy of the plan is annexed to the resolution of the Development Committee of 15 December 1982). However, at about the same time the GLC reviewed its spending priorities, and gave completion of the Southern Relief Road a lower priority. In consequence, the completion of the project was not taken forward for many years.
The Council itself took up the project in the early 1980s. A number of committees, including the Policy and Resources Committee, the Development Committee and the Public Works Committee, as well as the full Council itself were involved. In parallel with this the Council also had plans for an extension of the shopping centre of Bexleyheath; but these latter plans fizzled out in the mid 1990s.
Nevertheless, the Council did acquire a number of houses in Methuen Road, in exercise of its powers under the Town and Country Planning Act 1971 to acquire land. The acquisitions were for the most part voluntary. In particular by a transfer dated 30 September 1983 the Council acquired the freeholds of 16, 16a, 18, 18a, 20, 20a 22, 22a, 24 and 24a Methuen Road, subject to leases disclosed in the charges register. The transfer recited that the Council was exercising its statutory power to acquire land under the Town and Country Planning Act 1971.
On 27 June 1985 the Public Works Committee approved the proposed layout of the Southern Relief Road as shown on Plan AO/1252/3 and referred it to the Development Committee as the basis for a compulsory purchase order. Plan AO 1252/3 showed the line of the intended road. Some of the lines are solid and some are dashed. The dashed line to the north of the route of the intended road is located to the south of the boundary of Butler’s Yard. It does not coincide with it. Mr Tager submitted that the significance of the dashed line was that it was not a fixed boundary. However, elsewhere on the plan (which also shows existing roads and footways) the edge of the footway is represented by a dashed line. I read the dashed line to the north of the intended highway as representing the intended northern edge of the footway. On this basis the intended highway did not include the ransom strip.
On 4 July 1985 the Development Committee recommended that the Council make a compulsory purchase order for the acquisition of land shown on plan AO/1252/100 pursuant to sections 239, 240, 245 and 260 of the Highways Act 1980. This plan shows (among other things) the whole of the back gardens of the houses in Methuen Road right up to the southern boundary of Butler’s Yard as among the parcels to be acquired.
On 22 October 1985 the Council applied for planning permission to change the use of land shown on plan AO/1252/3 to “use as a public highway”. The application was allotted number 85/1515. The plan submitted with the application was the same plan as that which the Public Works Committee had approved as showing the intended layout of the new highway. On 5 December 1985 the Council resolved that planning permission for the construction of the Southern Relief Road be deemed to be granted, subject to conditions. One of the conditions was that details of the boundaries of the highway be provided.
On 12 March 1987 the Council made the London Borough of Bexley (Bexleyheath Southern Relief Road) Compulsory Purchase Order 1987 and submitted it to the Secretary of State for confirmation. In order to implement the scheme it would be necessary to stop up existing highways and means of access; and the Council corresponded with the Department of Transport about this. In the course of a letter to the Department dated 7 April 1988 the Council’s Chief Solicitor said that:
“… there will be a small strip of land between the rear boundary of the highway and the remaining part of the access way to Butler’s Yard. It will be the [intention] of the Authority to grant the necessary easement over this small strip of land to enable access to the new highway to be maintained.”
A public inquiry into the compulsory purchase order was held on 19 and 20 April 1988; and the inspector reported to the Secretary of State on 18 May 1988. The Council had prepared a statement of reasons for the making of the order; and at least two of its officers gave evidence at the public inquiry. In the statement of reasons, the Council said (in para 13 (1)) that the Southern Relief Road was generally designed to consist of dual 7.3 metre carriageways, a 2 metre wide central reservation and 2.5 metre footways. In para 13 (6) it said that all necessary hard and soft landscaping (including fencing) would be provided. Para 14 said that this route and design would “keep to a minimum the land and property necessary.” The plots that were the subject of the order were designated by numbers. Those that are relevant to the present case were plots 5, 5a, 6, 6a, 7 and 8. The statement of reasons described the justification for their acquisition as follows:
“Plots 5, 6, 7, 8 and 9 contain properties which are physically affected by the alignment of the proposed road. Plots 5a, 6a, 7a, 8a and 9 are required to form an environmental strip with mounding and barriers to reduce noise to the houses in Methuen Road.”
One of the Council’s witnesses was Mr James Wright, the Assistant Chief Traffic Engineer. In para 4.1 of his witness statement he said:
“The Southern Relief Road proposal, which is shown on drawing No. AO/1252/6 (BEX 4:P) is generally designed to be of dual 7.2m carriageway, a 2m central reservation, and 2m footways…”
Plan AO/1252/6 showed the intended carriageway in grey and the intended footways in yellow. The yellow colouring stops short of the boundary with Butler’s Yard. The area coloured yellow is itself bounded by a solid line; and to the north of the solid line is a clearly visible uncoloured strip, the northern boundary of which carries the legend “C/B” which stands for “close boarded fence”. I read this plan as showing that the uncoloured strip (which coincides with the ransom strip) was not intended to form part of the highway.
In para 5.3 of his witness statement he said:
“The private means of access to Butlers Yard is situated almost centrally in the length of Methuen Road and is severed by the S.R.R. It is proposed that this access is stopped-up and that a new temporary access be permitted to the S.R.R. pending any redevelopment of the site. The temporary access would be to and from the northern carriageway only, and this, in turn, would be closed off after establishing permanent access to the site in conjunction with redevelopment.”
In relation to plots 5, 6, 7 8 and 9 he repeated the justification for acquisition contained in the Council’s statement of reasons.
Another of the Council’s witnesses was Mr Philip Greenwood, a Senior Planner. In his witness statement he outlined the planning background to the Southern Relief Road. He referred in particular to the earlier public inquiry in 1980 which had considered the Action Area Plan. He said that the proposals for the Southern Relief Road were fully considered at that time; and quoted part of the inspector’s report which said:
“The route of the SRR … makes possible the provision of a highly desirable rear access to the premises fronting the south side of Broadway where, at present, vehicular access across the wide pavements are the cause of much vehicular/pedestrian conflict. I regard the elimination of this dangerous conflict as being a first priority.”
Mr Greenwood referred to this again in the conclusions expressed in para 5.3 of his witness statement. An objection to the order had been made in relation to plot 7 and 7a. In dealing with that objection in a later part of his statement Mr Greenwood said of the proposed alignment of the Southern Relief Road:
“It enhances the development potential of land bounded by Broadway, Oaklands Road, Royal Oak Road and the SRR.”
He commented that a realignment of the road would “prejudice the potential development of land south of Broadway.”
In his report to the Secretary of State the inspector found as a fact that the proposed route would “keep to a minimum the land and property necessary”. He also concluded that the need for the road and its alignment had been the subject of extensive public consultation and inquiry and could not be questioned at this stage. He also concluded that the stopping up of means of access and the provision of new means of access were outside the ambit of his inquiry.
On 4 January 1990 the Secretary of State confirmed the order (with modifications); and on the same day made The Bexleyheath Southern Relief Road Scheme (Stopping Up) Order 1990. The stopping up order authorised the stopping up of the private means of access from Butler’s Yard to Methuen Road; and the Secretary of State declared himself satisfied that other reasonably convenient means of access would be provided. The new means of access were shown on a plan attached to the order. The land over which the new means of access was to be provided lay entirely to the north of the limit of the new highway, the route of which was shown as abutting (and contiguous with) the boundary of Butler’s Yard. The route of the main highway as shown on the plan attached to the stopping up order appears to show the northern edge of the footway as contiguous with the southern boundary of Butler’s Yard.
Plan AO/1470/30, drawn by the Council in February 1990, shows the extent of the adopted highway. The northern edge of the north footway stops short of the southern boundary of Butler’s Yard.
The contract for the construction of the Southern Relief Road was placed in March 1990. The setting out plan (AO/1470/2) which was one of the contract documents also showed the northern edge of the footway to the south of the southern boundary of Butler’s Yard; but it also showed a close boarded fence on the southern boundary of Butler’s Yard a little to the north of the edge of the footway. After some vicissitudes, including the insolvency of two contractors, the road was, as I have said, opened to traffic in April 1991.
Extent of the highway
Mr Tager and Mr Small agreed that the extent of a highway over which the public have rights of passage is a question of fact. However, they disagreed on what material was relevant in deciding that question of fact. Mr Tager submitted that the extent of the highway depended on the view that would be taken by a reasonable member of the public confronted with the physical features on the ground in April 1991. Such a person turning his or her attention to the northern part of the new highway would have seen a footway finished in block paving, with a small concreted strip beyond to the north, bounded by a fence. Such a person would have reached the conclusion that the highway extended to the fence. It was not necessary to examine any documents in order to decide the question of fact. Only if I was left in any doubt would resort to documents be permissible; and even then the documents in question would be limited to those in the public domain. Mr Small, on the other hand, submitted that although there was no formal need for a dedication in the case of a highway constructed under section 24, it was still necessary to inquire what exactly the highway authority had built in exercise of that power. That was itself a question of fact, to be determined by looking at the documents which the highway authority created as well as the works on the ground.
In support of his submission Mr Tager relied on the “hedge to hedge presumption”. The existence and application of this presumption was comprehensively discussed by the Court of Appeal in Hale v Norfolk County Council (above). From that case and the earlier cases approved in it, it is, in my judgment clear that:
The mere fact that a road runs between hedges or fences does not give rise to any presumption;
It is necessary to decide, as a question of fact, whether the fence was erected in order to separate land enjoyed by the landowner from land over which the public had rights of way;
If that intention is established, then there is a presumption that the land between the fence and the metalled or made up surface of the highway has been dedicated as part of the highway;
But the presumption, even where it exists, is rebuttable by evidence to the contrary;
There is no presumption that a fence which does in fact separate land over part of which there is a public right of way from land enjoyed by the landowner has been erected in order to demarcate the boundary of the highway. Whether it has or not is a question of fact in each case;
In deciding that question, the court must take into account everything that is known about the circumstances in which the fence was erected.
It is plain from the way in which the court analysed the evidence in that case that the relevant material is not confined to the physical features on the ground. As Hale LJ pointed out, when the origin of the fence is “lost in the mists of time” resort to physical features may be the only option. But that is not the case here. In my judgment Mr Tager’s submission that the relevant material is confined to the physical features of the locality is not well founded.
In the present case, so far as the evidence goes, the fence was erected by the Council’s contractors, as part of the original contract for the construction of the new highway that was to become Albion Road. The Council, as highway authority, would not have had the power to erect a fence on private land. In addition there appear to have been leasehold interests in the strip, at least where it adjoined the southern boundary of Butler’s Yard, which the Council acquired in exercise of compulsory powers of acquisition under the Highways Act. On the other hand, the fence was intended to be erected on the line of the old boundary fence which separated Butler’s Yard from the former back gardens of the houses on the north side of Methuen Road. The Council, in its capacity as landowner would have had the power to fence its own land. Thus the intended line of the fence was referable to a boundary that existed before the highway. The concrete was laid on the strip either as part of the original contract or as a variation to it. As owner of the strip the Council would have had power to lay the concrete. It did not need to exercise the powers of a highway authority to do so. In addition the fact that there is a change of surface material is some (albeit slight) evidence that the strip was not intended to form part of the highway. Accordingly, I do not consider that it has been established that the fence was erected in order to fence against the highway. Consequently no presumption arises.
The various plans that have been tendered in evidence are not entirely consistent. For example the plan approved at the local inquiry into the action area plan showed the northern edge of the proposed highway abutting the southern boundary of Butler’s Yard; and the inspector’s conclusion quoted by Mr Greenwood in his evidence to the public inquiry into the compulsory purchase order that the route of the Southern Relief Road would enable access to be provided to the land to the south of Broadway is consistent with that precise alignment. On the other hand, the more detailed plan produced by Mr Wright to the same inquiry shows a clear gap between the edge of the intended highway and the southern boundary of Butler’s Yard. It was common ground that the decisions of the Council are to be found in its formal documents rather than the opinions expressed by its officers. I consider, therefore, that the decisions of the Public Works Committee in approving the layout of the road, that of the Development Committee in granting planning permission for it; the contract plans annexed to the road building contract itself; and the adoption plan are entitled to the greatest weight. On the basis of those documents it seems to me that the Council did not construct a highway whose boundary was contiguous with the southern boundary of Butler’s Yard.
It is true that, as Mr Tager said, there is no reference in any of the formal documents emanating from the Council, nor in any of the evidence submitted to the public inquiry, that the members of the various committees were conscious of reserving a “ransom strip”. However, I do not think that that matters. The members may not have been aware of the ramifications of not constructing the highway with a boundary contiguous to the southern boundary of Butler’s Yard; but the fact remains that the formal acts of the Council and its committees in approving the layout of the road has resulted in the retention of a ransom strip.
I conclude therefore that the ransom strip was not part of the highway.
Estoppel
Mr Tager says that the legal analysis of the law of estoppel is simple. In its letter of 28 August 1992 the Council represented to Maison Maurice that if planning permission were obtained, and if the Chief Engineer gave his approval, Maison Maurice would be entitled to vary the position of the right of way. Although the letter mentioned the payment of the Council’s costs and the cost of the works, it did not mention any additional payment, let alone a ransom payment. In his letter of 24 November 1993 the Chief Engineer said that moving the access was “acceptable”. He did not limit himself to saying that it was acceptable from an engineering point of view only. The Council required Maison Maurice to remove any adjacent wall or fence, to close the old access and to pay the Council’s costs of constructing the new crossover. The Head of Planning Control asked Maison Maurice to take on board the Chief Engineer’s comments about the need to take advice from the Works and Contracts Department before implementing the planning permission. The clear inference was that, having taken that advice the planning permission could be implemented, that is to say put into effect. Necessarily that would have entailed the use of the new crossover for access to Butler’s Yard. Maison Maurice complied with all these conditions; and both parties thereafter behaved (until 1998) as if Maison Maurice had a right of way over the new crossover in place of its old right of way. The legal consequence of this is that the Council is now estopped from denying that Maison Maurice has a right of way over the new cross-over. Thus described, the case falls squarely within the principle in Crabb v Arun District Council [1976] Ch. 179.
Mr Small says that the position is not that simple. What may be the legal consequence as regards a private individual or corporation is not necessarily the same as regards a local authority. In exercising the statutory power to grant or refuse planning permission, the Council, in its capacity as local planning authority, must act in the public interest and may only have regard to considerations that, for planning purposes, are material. Title to land is not one of them. So the grant of planning permission cannot be taken to bind the Council in its capacity of landowner. So far as the construction of the crossover is concerned, this too was carried out by the Council in the exercise of a statutory power. The Council is the highway authority as regards Albion Road. Section 184 (11) of the Highways Act 1980 says:
“Any person may request the highway authority for a highway maintainable at the public expense to execute such works as are specified in the request for constructing a vehicle crossing over a footway or verge in the highway, and the authority may approve the request with or without modification, or may propose alternative works or reject the request; and in determining how to exercise their powers under this subsection an authority shall have regard to the matters mentioned in subsection (5) above.”
The matters mentioned in section 184 (5) include such matters as the need to prevent damage to a footway or verge. They do not include title to land. Section 184 (12) says that if a request for a crossover is made, and is approved by the highway authority, they must supply the person making the request with a quotation of the costs of the works as approved. That person may, on depositing the amount quoted, require the highway authority to carry out the works. Finally section 184 (13) says:
“As soon as practicable after such a deposit has been made with an authority the authority shall execute the works as approved or proposed by them.”
Accordingly Mr Small says that it is clear that if a person requires a crossover, the highway authority (viz. the Council) must consider the request by reference to the statutory criteria set out in section 184 (5), although he accepts that these criteria are not exhaustive. If they approve the request, and the person making the request pays the deposit, they must construct the crossover. They are not concerned with the ownership of the footway or any neighbouring land. This in is practice how the Council operates section 184. It checks to see whether planning permission has been granted and inspects the site to see whether any street furniture needs to be moved; but otherwise does not concern itself with title.
Thus Mr Small submits that the communications between Maison Maurice and the Council in 1995 were all referable to the performance by the Council of statutory powers. Moreover he points out that Maison Maurice did not follow up the Council’s ownership of the ransom strip, of which they had been informed in the letter of 28 August 1992. In those circumstances, it cannot be said that the Council, in its capacity as landowner, has encouraged a belief in Maison Maurice that they would acquire a right of way over the new crossover.
In addition, Mr Small submits that any estoppel is precluded against the Council because of the doctrine of ultra vires. It is a general principle that estoppel cannot be used so as to fetter a statutory discretion entrusted to a local authority: Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204. Nor can reliance on estoppel validate what would otherwise be an ultra vires act. In the present case the Council could not lawfully have granted a right of way to Maison Maurice, because of section 123 of the Local Government Act 1972. This precludes a local authority from disposing of an interest in land (which includes an easement) without the consent of the Secretary of State otherwise than for the best consideration that can reasonably be obtained. Nor is it any answer to say that the Council is estopped from denying that it has the consent of the Secretary of State, because an estoppel to that effect is just as much precluded by the ultra vires doctrine: Rhyl UDC v Rhyl Amusements Ltd [1959] 1 WLR 465, 474. (It may be that the correct statutory power of disposal is section 233 of the Town and Country Planning Act 1990, but the substance of Mr Small’s point is unaffected: see section 233 (3)).
In my judgment Mr Small’s submission on ultra vires, as a matter of general principle, is correct. However, it seems to me that it does not exhaust the possibilities. First, Mr Small accepted that section 123 of the Local Government Act 1972 would not have precluded the Council from granting a licence over the ransom strip otherwise than for the best consideration reasonably obtainable. Second, the Council, as it seems to me, would have had power under section 127 of the Highways Act 1980 to agree the stopping up of the old access to the highway; and the power under section 129 of that Act to provide a new one. Mr Small accepted that if the Council had exercised these powers it would not have been entitled to charge a premium for the provision of the new means of access to the highway. However, he submitted that:
The power was inapplicable; and
The Council had not in fact exercised this power anyway.
Section 127 provides:
“The highway authority for a highway may agree with the occupier of any premises and any other person having an interest in them that any private means of access to the premises from the highway shall be stopped up by that authority in any way which seems to them appropriate but not so as to obstruct any highway; and an agreement under this section may make provision for the payment by the highway authority to the other party of compensation in respect of the damage (if any) suffered by him in consequence of the stopping up of the means of access.”
Section 129 provides:
“(1) Without prejudice to their power to provide a new means of access to any premises when authorised to do so by an order made under any enactment, a highway authority—
(a) who by virtue of an order under section 124 above or an agreement under section 127 above have stopped up a means of access to any premises or propose to do so; or
(b) who consider it necessary or expedient in connection with the construction, improvement or alteration of a highway to provide a new means of access to any premises,
may, subject to subsection (2) below, provide a new means of access to those premises from any highway or proposed highway.
(4) The provision of a new means of access to any premises from a highway under this section or under or by virtue of section 124, 125 or 127 above includes the provision of a road, path or other way on those or any other premises.”
Mr Small accepted that section 127 could apply; but only on the basis that Maison Maurice had an interest in the ransom strip by virtue of their easement. I agree that section 127 could apply, but not (or not only) on the basis suggested by Mr Small. The ransom strip was the means of access itself rather than the premises to which the means of access provided access. Moreover the power to agree is a power to agree with the occupier of “any premises” to which there is a private means of access. The premises occupied by Maison Maurice were not the ransom strip but Butler’s Yard beyond. To conclude otherwise would unduly restrict the statutory power. Accordingly, in my judgment the “premises” referred to in section 127, as applied to the present case, are Butler’s Yard itself. On that basis, I consider that it would have been open to the Council to have agreed with Maison Maurice to stop up the private means of access. In connection with such an agreement, it would have been open to the Council under section 129 to have provided a new means of access to “those premises”; that is to say, a new means of access to Butler’s Yard. This power includes a power to provide a road, path or other way on the premises concerned (i.e. Butler’s Yard) or on “any other premises”. It seems to me that “any other premises” must include the ransom strip owned by the Council. It follows, in my judgment, that the Council could lawfully have agreed with Maison Maurice to provide a new means of access by way of a cross-over over the ransom strip in return for stopping up the old access.
Whether or not the Council did in fact exercise the power seems to me, at this stage in the argument, to be beside the point. The question that arises when a plea of ultra vires is raised as a defence to a claim based on estoppel is not whether the power has been exercised, but whether it could have been. Ex hypothesi the power has not been exercised; because if it had been there would be no need for an estoppel. What matters is whether it could have been. If it could have been, then the doctrine of ultra vires does not provide a defence.
I agree with Mr Small that the grant of planning permission for an access and crossover cannot, without more, found an estoppel against the local planning authority as regards a right of way. To conclude otherwise would encroach on the principle that estoppel cannot fetter the exercise of a statutory discretion. However, the fact that the Council corresponded with Maison Maurice, built the crossover, including the laying of tarmac over the ransom strip, and charged Maison Maurice for the cost of those works is different.
Mr Small’s reliance on the Council’s powers and duties under section 184 of the Highways Act 1980 is not seamless. The power is a power to construct a vehicle crossing “over a footway or verge in the highway”. A “footway” is defined by section 329 (1) of the 1980 Act as a way “comprised in the highway” over which the public have a right of way on foot only. A verge, according to section 184, must be a verge “in the highway”. What right, then, did section 184 confer on the Council, in its capacity as highway authority, to build a crossover over the ransom strip which, ex hypothesi, is not part of the highway?
In my judgment section 184 did not confer on the Council, in its capacity as highway authority, the power to construct a crossover over the ransom strip. In its capacity as landowner, however, it was entitled to authorise the construction of the crossover on its own land. Bearing in mind that the rationale for the construction of the new crossover was the interests of road safety within the Council’s area, and having regard to the Council’s powers under section 129 of the Highways Act 1980, I cannot see that the construction of the crossover over the ransom strip would itself have been ultra vires the Council.
Accordingly, I conclude that in this case the principles of estoppel as they apply to the Council in this case are the same principles that would apply to a private landowner. What, then are those principles?
As Robert Walker LJ pointed out in Gillett v Holt [2001] Ch 210, 225:
“[I]t is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”
In the course of his review of the authorities Robert Walker LJ quoted with approval the well known statement of Oliver J in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd (Note) (1979) [1982] QB 133, 151:
“Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”
Before the planning application was made the Council’s Engineer, to whom Maison Maurice had been directed by the letter of 28 August 1992, had said that moving the access eastwards was acceptable. Even the letter of 28 August itself did not explicitly envisage more than payment of the Council’s costs and the cost of the works. The application pursuant to which planning permission was granted was an application to move the existing crossover to a new position. The planning permission that was granted reflected this, in that it required the old access to be stopped up and extinguished, before the new access could be used. A reasonable reader of the planning permission, against the background of the preceding correspondence, would have been left in no doubt that the new access was to be a substitute for the old. The planning permission contained the warning that it did not override legal rights (including those of the Council). That was a part of a standard printed form and did not assert that the Council had any particular rights. When the Council wrote on 13 November 1995 all that the letter said was that the Chief Engineer required Maison Maurice to obtain the advice of the Works Department before implementing the permission. That letter would have conveyed to a reasonable reader the message that once that advice had been taken, the planning permission could be implemented. Implementing the permission means putting it into effect; and on implementation not only would the new crossover be put into use but the old one would be stopped up and extinguished. Whatever might be the legalities of requiring the extinguishment of a property right as a condition of a planning permission (which I need not decide) a reasonable person, on receipt of the planning permission would have understood that the old access was being permanently removed. Mr Sidwell’s memorandum, pointing out the need to obtain a separate licence from the Council as landowner, was prepared within the engineering department; and it was copied to the valuation department, the planning department, and the Contract and Works Department. But no one from the Council drew it to Maison Maurice’s attention. Whether that was deliberate or accidental is impossible to say. The Chief Engineer, the Chief Valuer, the Chief Planning Officer and the Chief Works Officer, and their respective departments were all part of the Council’s Directorate of Environmental Services. An outsider would not have been able to distinguish between them. Mr Small relied on the fact that it was the Works Department that was to carry out the works as negativing any assurance that Maison Maurice was to obtain a right to use the crossover. I do not see it that way. On the contrary, in my judgment the involvement of the Works Department in constructing the crossover on the ransom strip itself would have reassured a reasonable person that the Council had no objection to the existence of the crossover, and by necessary implication, to its use. Payment by Maison Maurice of the Council’s costs was exactly what the Chief Valuer had indicated would be required in the letter of 28 August 1995. A reasonable person who had taken the trouble to look up highway law might also have concluded that the Council, as highway authority, was exercising its statutory power to provide a new means of access in return for stopping up an old one.
Maison Maurice believed that as a result of these events it had exchanged one means of access for another effective means of access to the highway; and conducted itself accordingly. In my judgment this belief was encouraged by the Council.
Mr Small next argues that the detrimental reliance was relatively insignificant. He points to the modest level of expenditure that Maison Maurice incurred in implementing and adapting to the planning permission. I agree that the expenditure looked at on its own is relatively modest. But that overlooks the real detriment that Maison Maurice suffered, viz. the apparent extinguishment of its existing right of way. If the existing right of way was extinguished its extinguishment would also deal with Mr Small’s submission that Maison Maurice can open up the old access way. An extinguishment of the right would, in addition, benefit the Council as servient owner of the strip over which the right of way ran. It would now own that land unencumbered by any easement. Moreover, even if the Council were now to regrant the old right of way, there is no guarantee that Maison Maurice would obtain planning permission to use it as a vehicular access to Albion Road; and the Council cannot bind itself to grant planning permission for that use. It may be the case that despite the form of the condition attached to the planning permission, the old right of way, as a matter of private right, was not in fact extinguished because the extinguishment of a private right is not a proper matter for a condition attached to a planning permission, even though a negative condition preventing development until a highway has been stopped up is unobjectionable (see Grampian Regional Council v Aberdeen City Council (1984) 47 P & CR 633). It is unattractive for the Council to rely on its own unlawful act in imposing a planning condition in excess of its powers, assuming that it can (see Pedgrift v Oxfordshire County Council (1991) 63 P & CR 246, 258 per Staughton LJ). But even if this is so, the existence of the condition and the very existence of the planning permission for the new crossover, unlimited in time, may make it more difficult to secure planning permission again for the old crossover. It is, I think, almost inconceivable that the Council would permit the existence of two planning permissions for two accesses to Albion Road in close proximity to each other. Mr Small said that this is speculation, but it seems to me to be common sense. Accordingly, even if the old private right of way has not been extinguished, it cannot be said that it can lawfully be used or that there is a firm prospect of its being capable of lawful use in the future. In addition Mr Jonathan Sundin said without challenge that to revert to the old access would be unsafe; would cost at least £10,000 and that the moving of steel freight containers would be a logistical nightmare.
Is the conduct of the Council unconscionable? In my judgment it is. To require a person to extinguish a right of way as the quid pro quo of the implementation of the grant of planning permission and the construction by the Council itself of a crossover facilitating that implementation, all on the grounds of road safety; to fail to mention the need to secure a licence from the Council before implementing the planning permission, and then to turn round and demand over £1 million seems to me to be unconscionable. It is tantamount to creating a trap into which Maison Maurice could easily fall.
In my judgment the ingredients of estoppel are amply satisfied.
In fashioning a remedy in cases of estoppel like this, the court adopts a flexible approach. One possible starting point is to fulfil the claimant’s expectations. But if the claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered then the court will recognise that the claimant’s equity should be satisfied in another (and more limited) way. But even in such a case fulfilment of the claimant’s expectation should not be abandoned: Jennings v Rice [2003] 1 P & CR 8 at paras 50 and 51, approved in Cobbe v Yeoman’s Row Management Ltd [2006] 1 WLR 2964.
In the present case Maison Maurice’s expectation was that it would receive a new, permanent and safe access in substitution for the old without additional payment other than the Council’s costs, which it paid. It gave up its old access permanently. Although the expenditure it incurred was relatively modest, the real detriment was, as I have said, the apparent extinguishment of the old right of way. Mr Small also said that any equity had already been satisfied by Maison Maurice’s enjoyment of the new access, without payment, for over a decade. However, the benefit that Maison Maurice has enjoyed by use of the new crossover is matched (or nearly matched) by the loss of use of the old crossover. Moreover this submission also overlooks the extinguishment of the old right of way, or at least the acceptance of the condition attached to the new planning permission requiring its stopping up and extinguishment, and the consequent difficulties attendant on any attempt to reopen the old crossover. In my judgment, therefore, it cannot be said that fulfilment of Maison Maurice’s expectation is extravagant or disproportionate to the detriment it has suffered.
I hold that the Council are estopped from denying that Maison Maurice has a permanent means of access to the highway over the new crossover, which could have been provided by exercise of statutory powers under sections 127 and 129 of the Highways Act 1980 or by the grant of a licence. A declaration to this effect does not require the Council to make any disposal of land in contravention of section 123 of the Local Government Act 1972. The declaration will be conditional on an undertaking by Maison Maurice to surrender the existing right of way (to the extent that it still exists).