Key points

  • Where A encourages B to think that he (B) has a right of access over A's road, and B relies on that belief to his detriment, the court may order A to grant a right of way to B
  • However, this will not always be easy to establish
  • Where an agreement is reached in relation to rights over property, it should be properly documented

When acquiring land, it is important to ensure that it has all the rights that the buyer needs. This is particularly the case where the land is being acquired for development.

In Joyce v Epsom and Ewell Borough Council, a bungalow fronting onto the street appeared also to be accessible over an unadopted access road to the rear. However, there was no formal documentation to support any right to use this road. A property developer bought the bungalow with a view to taking advantage of the dual means of access in order to build multiple dwellings on the property.

The developer argued that the owner of the access road (a local authority) should grant him a formal right of way. The local authority stated that it would only be prepared to grant a right of way on payment of £5,000, and that the right of way would be restricted so that it could only serve the existing bungalow and not any additional dwellings.

History

In order to make sense of why the developer claimed to be entitled to a right of way, it is necessary to go back some years to when a predecessor in title to the developer, Mr H, owned the bungalow. Proposals were made for the development of a supermarket on land adjacent to Mr H's property. Mr H objected to the plans. One of his concerns was about the impact of the development on the access to the front of his property.

In the end, Mr H requested that, if the supermarket was to go ahead, an access road be constructed which would give access to the rear of his property, enabling him to build a garage and take advantage of the rear access.

An agreement under section 278 of the Highways Act was entered into between the local authority, the highways authority and the supermarket developer. This required the provision of a "private vehicular access to the rear of properties fronting [name of street]". The access road was duly constructed, with gates allowing access into the rear of Mr H's property. Mr H built his garage and laid a driveway to connect the garage with the new road. The access road was then used by Mr H and his successors in title without difficulty.

Proprietary estoppel

The developer argued that the local authority was bound to grant a formal right of way over the road. This was because (it was alleged):

  • the authority, as owner of the road, had induced or encouraged Mr H to believe that he had, or would enjoy, a right of access over the road;
  • in reliance on that belief, and to the knowledge of the authority, Mr H acted to his detriment by building a garage and driveway; and
  • the authority had acted unconscionably in denying the right of access.

If made out, these elements would result in a "proprietary estoppel" arising against the local authority. The parties were agreed that, if the court found that Mr H was entitled to the benefit of a proprietary estoppel, then the developer as his successor in title was also so entitled.

Decision

The Court of Appeal ruled that the necessary elements of a proprietary estoppel, as outlined above, were indeed made out in this case. It rejected the suggestion that Mr H was simply a tolerated trespasser or had only a revocable licence to use the road. It therefore held that Mr H, and consequently his successors in title, was entitled to a right of way over the access road.

However, it ruled that the right should be limited to the use of the present single dwelling on the property. Mr H's expectation had to be taken into account. There was nothing to suggest that Mr H undertook the building of the garage and the driveway in anticipation of future development. The road remained a private road, for the upkeep of which the local authority was responsible. It was not right that the authority should have to accept more extensive maintenance obligations in the event that vehicular traffic from the property was increased.

The developer therefore succeeded in its claim that it should be granted a formal right of way over the road. However, the extent of the right of way would not enable it to proceed with its plans to build multiple dwellings on the property.

Things to consider

The local authority did try to argue that the grant of a right of way could not have arisen by virtue of proprietary estoppel because (the authority alleged) it would have been ultra vires for the authority to have made such a grant for no consideration. This was rejected by the court on the ground that the grant of an easement to Mr H would have been "part of the entire deal" of the redevelopment of the area and the grant of planning permission.

This case emphasises how important it is first, to ensure that where an agreement is reached in relation to rights over property, it is properly documented, and second , to review the rights benefiting a property on its acquisition to ascertain whether they are sufficient for the buyer's needs.

The developer in this case seems to have bought the bungalow without any guarantee as to access over the road to the rear, although this appeared to be an integral part of its plans for the property. It is not safe to rely on equitable principles, and recourse to the courts at a later date, in order to establish rights which could have been properly documented at the time but were not. For another example of this, see Chaudhary v Yavuz.