Proprietary estoppel – Acquiescence – Right of way in favour of appellants’ property over path on respondents’ land – Parts of path destroyed and replaced with car parking space prior to parties’ respective acquisitions – Whether appellants’ claim for enforcement and reinstatement of right of way barred by proprietary estoppel by reason of predecessor’s acquiescence – Whether award of nominal damages permissible – Appeal dismissed and cross-appeal allowed
In 2004, the appellants purchased at auction a property that had the benefit of outline planning permission for development and subsequently constructed a house on the land. The auction particulars referred to a disputed easement, namely a right of way on foot and with wheelbarrows over a path that ran across the respondents’ property down a slope to the public highway. The right had been created by deed in 1980 and its route had been surfaced in part with a concrete ramp. However, prior to 1999, parts of the ramp had either collapsed or been removed and, in 1999 or 2000, the remainder of its surface had been removed, part of it had been surfaced as a parking space and a retaining wall had been realigned, thereby substantially interfering with the right of way.
The appellants brought an action against the respondents for a mandatory injunction requiring the reinstatement of the ramp, an injunction to prevent parking and damages. The respondents contended that the appellants’ predecessor in title had acquiesced in the destruction of the ramp and path and in the extension and resurfacing of the parking space so as to make it inequitable, by reason of laches or equitable estoppel, for the appellants to seek to enforce the right of way in its 1980 form.
In the county court, the recorder found that the removal of a substantial part of the ramp constituted a nuisance that the respondents had adopted by continuing to use the parking space. However, he held that the appellants were barred from seeking equitable relief because the respondents’ predecessor in title had relied on the acquiescence of the appellants’ predecessor by selling his property to the respondents without notice of any pending dispute concerning the right to use the parking space. However, he awarded nominal damages of £10 for nuisance. The appellants appealed and the respondents cross-appealed against the damages award.
Held: The appeal was dismissed; the cross-appeal was allowed.
(1) Laches and equitable estoppel were separate defences with different and distinct consequences. Laches was a general equitable defence that barred the grant of equitable relief where the claimant had been guilty of undue delay in asserting its rights: Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 and Fisher v Brooker [2009] UKHL 41; [2009] 1 WLR 1764 applied. Such delay operated only to bar the grant of equitable relief, such as an injunction, and did not extinguish the claimant’s legal right or bar its enforcement by, for example, the award of common law damages. Moreover, mere delay or inactivity on the part of a landowner in respect of the enforcement of its legal rights would not necessarily prevent a successor in title from obtaining equitable relief for their infringement: Nwakobi v Nzekwu [1964] 1 WLR 1019 applied.
(2) By contrast, equitable estoppel depended on the making of a representation or promise concerning the enforcement of property or contractual rights in circumstances that made it unconscionable for the promisor subsequently to resile from that promise. Where proprietary estoppel was established, the equity could be satisfied by the grant of permanent property rights over the estate of the party bound by the estoppel, which would therefore bind successors in title and could be enjoyed by the successors in title of the promisee.
Proprietary estoppel, although conventionally based on a representation by words or conduct, could be founded on the landowner’s acquiescence: Dann v Spurrier (1802) 7 Ves 231 and Ramsden v Dyson (1866) LR 1 HL 129 applied. The landowner’s obligation to make its position known was not limited to cases where silence would amount to deception; the question was what steps the owner, acting honestly and responsibly, might reasonably be expected to take to make its claim known: Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 applied. Moreover, in some cases, the principle could apply even though the initial interference with property or legal rights was clearly or knowingly tortious and involved no mistaken belief of right on the part of the defendant: Shaw v Applegate [1977] 1 WLR 970 applied. A flexible and fact-specific approach should be taken to each case involving an estoppel by acquiescence.
(3) The defence of proprietary estoppel was made out on the facts of the instant case. The acceptance of the ultimate situation by the appellants’ predecessor in title amounted to a recognition that the respondents’ predecessor would be entitled to use the parking space without interruption by the 1980 right of way. The respondents’ predecessor had been entitled to rely on that in formulating his replies to preliminary enquiries on the subsequent sale of his property. The recorder had been entitled to find that there had been an assurance or encouragement sufficient to found an estoppel, and that it became unconscionable thereafter to seek to enforce and reinstate the 1980 right of way.
(4) The award of nominal damages was wrong in principle. Since the appellants’ claim was dismissed on a defence of equitable estoppel and not merely on one of laches, this barred not merely the grant of an equitable remedy but the enforcement of the legal right. Accordingly, the respondents’ continued use of the car parking space could not constitute an actionable nuisance and no action, even for damages, could lie.
Robert Sheridan (instructed by Goldbergs, of Plymouth) appeared for the appellants; Peter Langlois (instructed by Lyons Davidson, of Bristol) appeared for the respondents.
Sally Dobson, barrister