In Joyce v Epsom & Ewell BC [2012] EWCA Civ 1398, the Couty of Appeal dealt with a claim for an easement by way of proprietary estoppel.

Mr Joyce’s predecessor in title, a Mr Holborn, lived next door to two properties which Sainsburys included in a planning application to build to the rear of.  Although the basis of the application changed over time, Mr Holborn objected to the planning proposal but proposed the construction of a rear service road to his and other properties; he also offered to buy a six foot strip of land on the boundary between his property and the two properties to be demolished so that he could put a garage there to take advantage of the rear access. His desire to buy the strip remained intact and the Council effectively agreed to it in  a section 106 agreement between themselves and Sainsburys. There was then a meeting between Mr Holborn and Sainsburys at which it was agreed to extend his fence line to three metres and that the council had no problem with that; Mr Holborn then constructed a driveway to a garage (which he moved to the end of the three metre strip).

Mr Joyce bought the property in 2007 and the council sought to charge him £5,000 for the formal grant of the access. Mr Joyce disputed this on the basis that the actions of the Council amounted to proprietary estoppel i.e. a promise which he had relied on to his detriment.

At trial, the judge found that the council had clearly encouraged and allowed Mr Holborn to believe he would have a right of access and there was ample evidence of reliance and detriment. This seemed, then, a relatively clear cut case. But, the judge held against Mr Joyce because the council did not know that Mr Holborn was erecting the garage or constructing the driveway. There was also no unconscionability (i.e. that it was morally unacceptable) because the council had not been prevented Mr Holborn/Joyce from using the right of way.

Mr Joyce took his case to the Court of Appeal and was successful.  Davis LJ disagreed with the judge that the council had no knowledge of Mr Holborn’s acts of detriment – the inference from the documents was that they did know it was his intention and that he would have to undertake some works to make good that intention.  Even so, whether or not the council were aware was not particularly significant as this was a case of encouragement – they knew what he intended to do. On unconscionability, Davis LJ rightly rejected the judge’s approach – this was as clear an example of unconscionability as possible and the fact that they hadn’t stopped him from using the access point was just not relevant; the fact that they were seeking to charge £5,000 was the point.

My view is that unconscionability is a check on proprietary estoppel. In the normal course of events, if you pass the criteria, it will be unconscionable conduct by the Defendant.

Mr Joyce got his right, but limited to what was required to access a single dwelling. Given it appears he wanted to develop the land this may have been a somewhat hollow victory.

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