Joyce v Epsom and Ewell Borough Council

In an encouragement-based proprietary estoppel claim, it is not invariably necessary for the landowner to know the precise works undertaken in reliance on its assurance. The question is fact-sensitive, particularly where the landowner knew the intended use and the works were foreseeable.

It is unconscionable for a landowner, after encouraging reliance on an expected right of access, to deny that right by requiring payment for a formal grant. Mere tolerance of the use does not answer the question of entitlement. Relief must be fair and proportionate, assessed by reference to the original owner’s expectation and detriment. A successor takes no greater equity than that original owner.

The claimant, as owner of 111 East Street, claimed a right of way over a private rear service road vested in the Council. The claim derived from assurances and encouragement given to a former owner, Mr Holborn, during the development of a supermarket scheme in the early 1990s. Mr Holborn installed a garage and driveway to use the rear access provided.

Guildford County Court — HHJ Reid QC dismissed the proprietary estoppel claim. He found encouragement, reliance and detriment, but held that the Council had not known of the works and had not acted unconscionably because it had not prevented use of the road.

The claimant appealed. The central issue was whether the Council could require a premium for a formal right of way after the assurance and detrimental reliance.

1. Appeal allowed. The Council’s encouragement gave rise to an equity entitling the claimant, as successor to Mr Holborn, to a right of way over the service road. The judge’s conclusion that the Council had not acted unconscionably could not stand.

2. The ordinary proprietary estoppel inquiry remained whether there was encouragement of an expected right, detrimental reliance, and unconscionability. The Council had encouraged Mr Holborn to expect rear vehicular access. His driveway and garage works were sufficient detriment.

3. The Court rejected the finding that the Council lacked knowledge of the relevant reliance. The documentary evidence showed that the Council knew Mr Holborn intended to make practical use of the rear access, including by installing a garage. In any event, in a case based on encouragement, actual knowledge of every precise act of reliance is not an invariable requirement. That flexible approach was supported by [1976] 1 Ch. 179 and [1982] QB 133.

4. The Council’s previous tolerance of the use of the road did not answer whether Mr Holborn had an entitlement. Its demand for £5,000 for a formal grant effectively denied that entitlement. Revocation, or a demand for payment, would defeat the expectation which the Council had encouraged and on which Mr Holborn had relied. That was unconscionable.

5. Relief had to be fair and proportionate between the parties, rather than mechanically framed as the minimum equity. Applying [2003] 1 P&CR 8, the right was confined to a single dwelling house at 111 East Street. Mr Holborn had not expected, or relied on access for, redevelopment of the site, and the claimant could not obtain a wider right because of his own development ambitions.

6. The Court declared that the claimant was entitled, without a premium, to a vehicular and pedestrian right of way over the service road serving one house. The parties were to agree a minute of order and, if necessary, a deed of grant.

• Court of Appeal (Civil Division) — allowed the appeal and declared a limited right of way: [2012] EWCA Civ 1398.
• Guildford County Court — HHJ Reid QC dismissed the proprietary estoppel claim on 17 January 2012.