London Borough of Bexley v Maison Maurice Ltd

A highway constructed by a highway authority does not necessarily extend to the boundary shown by physical features on the ground. Its extent is a question of fact, determined from all relevant evidence, including the authority’s formal decisions, plans and construction documents. A fence gives rise to a presumption that adjoining land forms part of the highway only where it was erected to separate private land from the highway; the presumption is rebuttable.

A local authority may be subject to proprietary estoppel in its capacity as landowner. Planning permission alone cannot create an estoppel concerning land rights, but assurances and conduct connected with the construction of an access may do so. The court may enforce the claimant’s expectation where it is proportionate to the detriment suffered.

The Council constructed Albion Road beside premises occupied by Maison Maurice Ltd. A narrow strip of land lay between the public footway and the premises. The parties disputed whether that strip formed part of the highway.

Maison Maurice later obtained planning permission to move its access, surrendered or accepted the apparent loss of its former access, and paid the Council’s construction costs. The Council constructed the new crossover and allowed its use for several years before demanding payment for a permanent right of access.

The issues were whether the strip was part of the highway and, if not, whether the Council was estopped from denying Maison Maurice a permanent access over it.

1. Highway extent. The Council had constructed Albion Road under section 24(2) of the Highways Act 1980, and it was maintainable at public expense under section 36(2)(a). The issue was the extent of the highway. That was a question of fact, determined by all relevant evidence, not merely by what a reasonable member of the public would infer from the physical appearance of the road.
2. The principles discussed in Hale v Norfolk County Council [2001] Ch 717 applied. A fence gives rise to a presumption that land between it and the made-up highway was dedicated as highway only if the fence was erected to separate private land from the highway. Here the fence followed the former boundary and the Council had power to erect it as landowner. No presumption therefore arose. The formal committee decisions, plans and contract documents showed that the strip was deliberately outside the highway.
3. Ultra vires and estoppel. Planning permission alone could not found an estoppel concerning a right of way. However, the Council could lawfully have stopped up the old access and provided a new one under sections 127 and 129 of the Highways Act 1980. Section 184 did not authorise construction over land outside the highway, but the Council could authorise the works in its capacity as landowner. The possible statutory power meant that ultra vires did not provide a defence.
4. The Council’s communications, construction of the crossover, laying of tarmac over the strip and acceptance of payment encouraged the belief that the new access replaced the old one. Maison Maurice relied on that belief and suffered substantial detriment through the apparent extinguishment of its former right of way. In the circumstances, it was unconscionable for the Council to demand a substantial payment years later.
5. Applying the flexible approach to proprietary estoppel described in Gillett v Holt [2001] Ch 210 and Jennings v Rice [2003] 1 P & CR 8, the Council was estopped from denying a permanent access over the new crossover. The declaration was conditional on Maison Maurice undertaking to surrender the existing right of way to the extent that it still existed.

First-instance judgment. The Council was estopped from denying Maison Maurice a permanent means of access over the new crossover, subject to the stated undertaking.