COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LINCOLN COUNTY COURT
(HIS HONOUR JUDGE INGLIS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LADY JUSTICE HALE
| ALAN VALENTINE
|- and -
SIMON JOHN NASH
Mr Ian Leeming QC and Mr James Stuart (instructed by The Ringrose Law Group, St Peter at Arches, Silver Street, Lincoln) for the First Respondent
Mr Ian Leeming QC and Dr Annette Prand (instructed by Herbert, Mallam Gowers of 126 High Street, Oxford) for the Second and Third Respondents
Crown Copyright ©
Lord Justice Chadwick :
The development land
The western plots
The Newton plan
That plan was subsequently revised in minor respects, but nothing turns on that. By the end of June 1991 it was in a form acceptable to the sub-purchasers. The Newton plan provided a practical solution to the problem of access to the three western plots; but it took little or no account of the ownership of the land over which that access was to be provided. There is no reason to think that that was a matter which Newton Design had been asked to take into account. It must have been obvious that, whatever the solution to the problem of access to the western plots, some further acquisition from Mr Rann, as the owner of the remaining (or eastern) half of the Home Farm land would be required.
The eastern lots
The July 1991 meeting
"I do not take the agreement to have been an agreement about the legal boundaries of the various pieces of land. It was an agreement about the layout of the development. It was also, and crucially, an agreement about the land which would be dedicated to accessway for each of the plots, by reference to the layout on the plan . . .
I therefore find that there was an oral agreement to which Rann and Mr Valentine were parties that the roadway and areas described as shared access on the plan would be dedicated as means of access to the Plots, including Beverley Merritt and Bailey's plots; and that in return for the legal entitlement to use such areas for access, Beverley Merritt and Bailey would perform certain works."
It is clear from context that the plan to which the judge refers in those passages is the Newton plan.
The deeds of grant
Subsequent dealings with the eastern lots
The September 1993 agreement
The subsequent ownership of the western plots
"The Claimant Mr Valentine successfully asserted to Beverley's mortgagee, the National and Provincial Building Society, that Plot 1 was landlocked as a result of the events that had happened, and so he was able to persuade them to sell it to him for what he described in evidence as the "lovely price" of £5000. . . . He has in recent times built a substantial house on the site."
Plot 1 is registered under title LL67120.
"We are advised that the property enjoys a right of way to a private entrance driveway off North End Lane enabling vehicular access to the shared garage block and to the property. However while on site we were challenged by a neighbouring owner who claimed the property to be landlocked which would in our opinion have a serious effect on the values reported above (in excess of 50%) and we would recommend detailed investigation and confirmation of all rights of access and maintenance liabilities by the completing solicitor in this respect."
The "completing solicitor" was Mr Adie. On 29 October 1997 he wrote to the manager of the bank:
". . . to confirm that plots 2 and 3 Home Farm have a defined right of access way to connect with the public highway. I enclose a photocopy of the land certificate relating to the driveway from which you will see that the whole of the access way is comprised within the registered title and is subject to rights of way in favour of the other properties on this development."
The copy land certificate enclosed with that letter is in respect of title LL94279 – that is to say, it is the land certificate in respect of the land transferred to Mr Bailey and Mr Merritt by Mr and Mrs Hunton on 21 May 1993.
"11. When I came to buy [western plots 2 and 3], naturally I sought advice from my solicitor, Mr Adie, as to whether or not there was any legal basis for Mr Valentine's claim that the properties had no access, and my solicitor informed me that the properties had the benefit of deeds granting rights of way over a shared access road in 1991. Referring to plans attached to those deeds (showing the houses and garage on South Plot (plot 3) and Middle Plot (plot 2) more or less in the position they had been built) it was clear that this road was adequate to provide access to both properties and an area at the end for vehicles to turn.
12. My solicitor further advised that the plans at the Land Registry showing ownership of the land subject to the rights of way did not correspond with the position of the access road shown on the deed plans. He also advised that the plan followed by the developers (of whom Mr Valentine was one) in laying out the site on the ground, was that used for the deed plans, not the title plans. Therefore, as the access road to the properties had been built in the intended position many years previously, no one was in a position to challenge it, least of all Mr Valentine who had been involved with the development at the outset and was responsible for building the garage belonging to the Farmhouse in a position which would obstruct the access road if it had to take the route indicated by the plan of the relevant title. Also, Mr Valentine could not have the benefit of the right of way as it [is] exists on the ground for access to his properties, the Barn [Jacob's Place] and North Plot [western plot 1], without also accepting the burden of other persons also using the right of way where it crosses any land within his title."
There was no challenge to that evidence. In particular, Mr Adie did not give evidence to contradict Mr Allen's account of what he had been told as to the position before he purchased western plots 2 and 3. It is a remarkable feature of this litigation that Mr Adie, who might be thought to be the person best able to explain the conveyancing transactions in relation to the Home Farm development site in which he had been engaged, was not called to give evidence at the trial.
The devolution of the eastern land.
"14. By reason of a building constructed at the western end of Title No LL82154 [the farmhouse] and marked on the Plan, it is not possible for vehicles using the South Access Way to access land registered under Title Nos LL67119, LL166539 and LL67121 [western plots 3 and 2 respectively] without coming onto the Claimant's Property [Jacob's Place] by reason of the obstruction caused by the building to the South Access Way.
. . .
22. The First Defendant's garage is built partly on his own land under Title No LL67119 [western plot 3] but substantially and as to the larger part upon land not owned by him being land registered under Title No LL94279, the same being subject to the rights of way granted under the deeds of 12 July 1991 as is hereinbefore pleaded.
23 By reason of the matters aforesaid the First Defendant:
23.1 has acquired and continued to maintain a permanent obstruction to, and interference with, the use by the Claimant (and the Second and Third Defendants) of the South Access Way and his enjoyment of rights granted to him
23.1.1. as owner of dominant land [western plot 1 – registered under title LL 67120] under the deed dated 28 February 1991 . . .;
23.1.2. as owner of dominant land [also western plot 1] under the deed dated 12 July 1991 referred to under paragraph 11 above;
23.1.3 as owner of dominant land [Jacob's Place] under the deed dated 12 July 1991 referred to under paragraph 13 herein;
. . . "
It is only if the "South Access Way" over which Mr and Mrs Hunton purported to grant rights of access in 1991 is (wrongly) treated as congruous with the land which, in May 1993, they transferred to Mr Bailey and Mr Merritt (now comprised in title LL94279) that sense can be made of those paragraphs. Once it is appreciated that the "South Access Way" – as defined in paragraph 11 of the amended particulars of claim – includes land which is not within title LL94279 paragraphs 14 and 22 cannot mean what they say. The building constructed at the western end of the farmhouse (title LL82154) does not obstruct the rights of access which Mr and Mrs Hunton purported to grant in July 1991 – because those rights of access were granted with that building in mind. Mr Allen's garage (built on land which he now owns) does not obstruct the rights of access granted by either of the deeds of July 1991 – because those deeds were based on the Newton plan which took account of the proposal to build a garage to serve western plot 3.
". . . it was the intention of the parties to the said Deed 'F' and to the transfers referred to in the Amended Particulars of Claim, that the Accessway as shown on the Plan attached to Deeds 'E' and 'F' would be transferred to Messrs Bailey and Merritt and that the Claimant's Property [Jacob's Place] transferred to him in 1992 was intended to be the area of land identified as 'Lot 3' on the Deed 'F'. The First Defendant will contend that the Claimant was aware of, acquiesced in and/or consented to the drawing up of the boundaries of all the Plots at Home Farm and the rights of way thereover in accordance with the layout shown on the said Plan attached to Deeds 'D', 'E' and 'F' [the Newton plan], and that the Claimant is estopped or in equity prevented from asserting that the said layout is wrong or not binding on him."
On the basis of that averment the defendants sought rectification of the Land Registry title plans so as to accord with the boundaries shown on the Newton plan.
". . . if contrary to the First Defendant's primary contention, it be found that the Claimant's property [Jacob's Place] covers the area shown on the Land Registry Title plan for LL78144, then the First Defendant will contend that, by reason of the matters set out above and below, the Claimant is now estopped or prevented in equity from alleging that vehicles following the route shown as the Accessway on the plan attached to deeds 'D', 'E' and 'F' [the Newton plan] are trespassing on his property. . . "
That contention is repeated in paragraph 16 of the re-re-amended defence; and repeated again, in relation to the garage serving western plot 3, in paragraph 23. On the basis of that contention the defendants sought by way of counterclaim (in the alternative to rectification of the Land Registry title plans) a declaration as to the existence and extent of rights of way enjoyed in respect of the properties comprised in the Home Farm development.
The Part 20 proceedings against Mr and Mrs Bridgestock
"Alternatively, if, contrary to the First Defendant's primary case, the Title plans for the plots at Home Farm are not altered to accord with the position on the ground as it stands and if it be found that the First Defendant is and has been guilty of any actionable trespass over land owned by the Claimant in order to gain access to his land by vehicles, then the First Defendant will contend that such trespass has been and is made necessary by reason of the positioning of the garage belonging to the Second Part 20 Defendants on land not owned by [them] and not forming part of Title no.LL82154 [the farmhouse], namely on part of Plot LL94279 (as indicated on [the Newton plan]). The said garage (and cars parked by the Second Part 20 Defendants adjacent to it) is (in such circumstances) preventing the First Defendant from gaining access to his garage and amounts to an actionable trespass by the Second Part 20 Defendants over the access-way and an unlawful interference with the First Defendant's right of way thereover."
On the basis of that plea Mr Allen sought a declaration against Mr and Mrs Bridgestock as to the correct and accurate boundaries, an order for rectification of the Land Registry title plans, damages for trespass and indemnity in respect of any sums payable by him to the claimant, Mr Valentine.
"Further or alternatively, the Claimant should be estopped from contending as against the Defendants that the right of way is other than along the Brown Roadway north of the Blue Land notwithstanding the fact that part of the Brown Roadway may be within the Claimant's registered title to the Barn: . . ."
In that context "the Barn" is the property (registered under title LL78144) now known as Jacob's Place, "the Blue Land" is the small piece of land at the western end of eastern lot 1 which was transferred to Mr and Mrs Murphy in April 1992 – thereby extending the curtilage of the farmhouse to the west by a few metres (see paragraph 21 of this judgment) – and "the Brown Roadway" is the road coloured brown on the plan (the Newton plan) attached to the July 1991 deeds of grant. The plea continues, in paragraph 13B, in these terms (so far as material):
". . . (a) the Claimant's predecessors in title of the Barn (Mr G P D Rann and Mrs L E Rann) would have been estopped (by convention or otherwise) from denying that the right of way was along the Brown Roadway, and the Claimant can be in no better position than his predecessors in title:
(i) it was the common intention of all the parties to the Deeds of Easement dated the 12th of July 1991 and the 9th of August 1991 that the right of way would be over the Brown Roadway. That common intention appears from the following:
(1) [T]he owners of all the plots of land on the Site entered into the Deeds of Easement dated the 12th of July 1991 and the 9th of August 1991 showing the right of way over the Brown Roadway. Mr and Mrs Bridgestock note that the witness statement of Mr Bailey served on behalf of the First Defendant refers to specific discussion involving Mr G P D Rann and the Claimant on the Site in June/July 1991 to the effect that access would be over the Brown Roadway. [emphasis added]
(2) The Site was laid out in accordance with the plan [the Newton plan] attached to the Deeds of Easement.
(3) Access to all the properties on the Site has always been in accordance with the Deeds of Easement.
(4) Neither the Claimant nor his predecessors in title of the Barn [Jacob's Place], Mr G P D Rann and Mrs L E Rann, have occupied the Brown Roadway. The boundary wall of the Barn has been erected so that access along the Brown Roadway is not impeded.
(5) The Garage [serving the farmhouse] was constructed by Mr G P D Rann and by the Claimant and no objection was made to the construction of the Garage by any of the proprietors of any of the properties on the Site. . . . [emphasis added]
The only reasonable inference is that Mr G P D Rann and the Claimant did not erect the Garage on the land they believed to be subject to the right of way, and the proprietors of the properties on the Site (including Mrs L E Rann) did not consider that the Garage had been erected on the land subject to the right of way. [emphasis added]
(ii) In any event, by reason of their conduct in erecting the Garage the Claimant and Mr Rann represented to the other proprietors of the Site and/or encouraged them to believe that the right of way ran over the Brown Roadway and not over the land on which the Garage had been built.
(iii) The proprietors of the other properties on the Site relied and acted on the common assumption/representation/belief by making no objection to the building of the Garage and continuing to use the Brown Roadway and all parties to these proceedings acquired their land on the understanding that the right of way was over the Brown Roadway.
. . . "
It is pertinent to note the reference, in sub-paragraph (a)(i)(1) of paragraph 13B, to the site meeting in June/July 1991 at which (as the judge found) Mr Valentine was present – see paragraph 39 of the judgment below and paragraph 14 of this judgment.
The judgment below
"As put forward at the trial, estoppel is analysed under different heads, namely proprietary estoppel, estoppel by representation, and estoppel by convention. Estoppel by convention may require a separate mention, but I take the first two as the same for the purposes of this case, the essence being a representation by the true owner of the land that the representee has or will have an interest in the true owner's land; that the representee has acted in reliance on the representation to his detriment; in circumstances where it would be unconscionable for the owner later to deny the truth of what he had represented. Whether estoppel actually confers proprietary rights, or can be used only as a defence, depends on the action taken by the court to give effect to the equity which has arisen, and does not require different ingredients."
Although it is submitted on this appeal that the judge was wrong to address the issues on the basis that there had been representations capable of giving rise to an estoppel, it has not been suggested that his summary of the elements required to found an estoppel by representation, or a proprietary estoppel, was wrong in principle. The judge rejected the submission that this was a case in which an estoppel by convention could arise.
"(a) Rann as beneficial owner of Jacob's Place encouraged Bailey and Merritt (and perhaps Beverley) to believe that the land laid out and shown as shared access on the Newton June plan would be land over which they had a right of way to go to and from their Plots from the gateway at Home Farm. They did believe that, and in reliance upon what they had been led to believe acted to their detriment, by building the walls, working on the roadway; and developing their end of the site in accordance with the plan, in particular Bailey built his garage in accordance with it. The Court should give effect to that reliance and detriment by refusing relief to the Claimant, as Rann's successor in title, when he claims of trespass, and by declaring that they enjoy equitable easements over the shark's fin.
(b) The Claimant also personally encouraged Bailey and Merritt in the relevant belief. It cannot on the finding that I have made be asserted that he, Mr Valentine, was originally a beneficial owner of Jacob's Place, but he became the owner on 17 July 1992, and inasfar as activities amounting to detriment continued after that, he himself is directly subject to the estoppel."
"I have no doubt that in the circumstances that had arisen, Bailey and Merritt in the Spring of 1993 could successfully have asserted against Mr Valentine easements over the land registered as LL78144 [Jacob's Place] to the extent that shared access is depicted on the June Newton plan."
"The Claimant's case is that the First Defendant's garage, built by Bailey partly on LL67119 and partly on land conveyed to Bailey and Merritt, and later to Mr Allen, by the Huntons [LL94279] obstructs the right of access to LL67121 and 67120. This is an important issue in the case, since the Claimant seeks an order that the garage be demolished. The First Defendant . . . on the basis of the facts which I have found, namely that the Land Registry plans accurately show the boundaries of the titles mentioned above, says that given the position in which the Claimant has constructed his garage [serving Jacob's Place] he only enjoys a narrow footway access to his newly built house on LL67120."
"That means that Mr Valentine as owner of LL67120 has access to his own land at LL78144 (sic) of sufficient width for vehicular access. In fact he has chosen to build a wall at the Eastern end of LL67120 and his garage on LL78144 in such a place as to obstruct that access. He has done so in circumstances where his only rights as owner of LL67120 over LL67121 are those in this [third] deed. There are no others. . . . [U]nless he carries out demolition Mr Valentine will find it necessary to cross LL67121. It is in respect of that apprehended trespass that Mr Allen claims compensation, and in my judgment he is entitled to it."
That conclusion led the judge to order that Mr Valentine pay to Mr Allen (as owner of the land within title LL67121) damages for past trespass in the amount of £200 (see paragraph 6 of the order of 8 May 2002) and an amount of £3,500 in lieu of an injunction in respect of future trespass (paragraph 7 of that order).
"When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands."
the judge went on to say this:
"I do not think that this species of estoppel applies to this case. As regards Bailey, Merritt and Beverley, they had acquired their plots in February 1991, and any right of way depended upon the efficacy of the express grant to them by the Huntons, or other events giving rise to an equitable right. I have found such rights on the basis of proprietary estoppel arising out of representations by Rann and Valentine. There was no formal transaction between Rann or Valentine and Bailey and Merritt with respect to a right of way over the shark's fin. Those parties were not all parties to one transaction that was based on an underlying assumption. The fact that the Huntons, by separate instruments, purported to grant rights of way over land not belonging to them cannot, it seems to me, bind the true owners, even if by one such instrument they were the supposed beneficiaries of a right of way over what was in fact their land."
The judge's decision as to costs
"This is a case in which the costs became wholly disproportionate to the remedies sought in the case from the very outset. . . . [I]t is a fact that the case long ago became one largely about costs."
He noted that the court's attempt to persuade the parties that their interests would be best served if the disputes between them were resolved by mediation had come to nothing.
"In this case conduct is important. It is a case where at every stage openness to settlement, the need to avoid costs, and the avoidance of fruitless issues was very important. The duty of the parties under Part 1.3 to help the court deal with the case justly seems to me to be something that must always be in the mind of the parties. . . . [T]he fact is that an open offer to settle marked without prejudice save as to costs is a vital tool for a party who wishes to safeguard his position in this kind of case, and reveal to the court at the end of the case the extent of his efforts to settle. It is lacking here. Also lacking was compromise on any issue, great or small."
The issues on this appeal
Access to western plot 1 – LL67120
Lady Justice Hale:
(i) that Mr Rann as original owner of Jacob's Place was estopped from denying the existence of the right of way and the resulting equitable easement was an overriding interest binding upon the claimant as his successor in title;
(ii) that the claimant was personally estopped because he was himself involved in the representation and allowed work to be done in reliance upon it after he had become owner of Jacob's Place; or
(iii) that all parties to the arrangements made in 1991 and acted upon thereafter were estopped from denying them.
Lord Justice Peter Gibson: