In Lester v Woodgate, the Court of Appeal was asked to decide whether a right of way was still enforceable.
An express right of pedestrian access was granted in 1980 by one neighbour to another along a newly constructed ramp and strip of land, to replace a prior expressly granted right of way. By 1999, the strip of land had been turned into a car parking space by its owner, and the ramp was no longer useable as part of it had either collapsed or been removed. Between 1999 and 2000 the owner of the land which was subject to the right of way carried out further works to it, removing most of what remained of the pathway, and resurfacing the parking area. The adjoining owner with the benefit of the right of way did not object, even though the works constituted a substantial interference with the right of way. Both properties then changed hands and the property with the benefit of the right of way was acquired by the claimants. The claimants sought an injunction to re-instate the ramp and prevent parking, and also damages for not having use of the right of way while they had carried out construction works on their property.
The defendants, who had acquired the property which was subject to the right of way, argued that the claimants' predecessor in title had acquiesced in the destruction of the ramp and the path. Therefore, they argued, it would be inequitable for the claimants now to seek to enforce the 1980 right of way.
The court agreed. The defendants' predecessor in title had relied on the acquiescence of the claimants' predecessor in title by selling his property to the defendants without notice of any pending dispute about the right to use the parking spaces. Although proprietary estoppel was normally used in cases where the defendant acquires a right over the claimant's property as a result of the claimant's conduct towards the defendant, there was no reason why the principles of proprietary estoppel should not be applied to a case where the defendant was alleged to have committed an act of nuisance by interfering with an easement over his own land. In both cases the claimant's conduct relates to his property interests and the estoppel operates to bar the enforcement of the claimant's legal rights. Since the effect of the estoppel was to bar not only the grant of an equitable remedy but the enforcement of the right itself, the claimants' claim for damages was also unsuccessful.
Things to consider
It is notoriously difficult to show that an easement has come to an end. The court will be slow to assume that the benefiting owner has abandoned the easement, and normally an express deed of release is required. In this case however, the defendants based their case not on abandonment but on equitable estoppel. The case will be of interest to landowners and developers whose property may appear, in theory at least, to be burdened by an easement, but which cannot in fact be exercised owing to a change in the layout of the site.
However, the facts must support an estoppel. An estoppel may be found when it can be shown that the party standing by has induced the would-be defendant to believe that the right will not be enforced, and the defendant has, as a consequence, acted in a way which would make subsequent enforcement of the right unconscionable. This should be distinguished from mere delay in enforcing a right. While delay may operate to bar the grant of equitable relief such as an injunction, it will not extinguish the claimant's right altogether, so that a claim for damages may still lie.