Bexley London Borough Council v Maison Maurice Ltd

Highway — Right of access — New highway built across defendant’s vehicular access route — Council purporting to reserve ransom strip along side of highway — Defendant stopping up existing right of way to highway in return for new access in different location — Whether council entitled to charge defendant for licence to cross ransom strip in new location — Whether ransom strip part of highway — Claim dismissed The defendant owned a property from where it operated a business as a wholesale drinks supplier. Vehicular access ran between two houses and gardens and emerged onto a residential street. The claimant council decided to build a new dual carriageway that would run through that access route. Pursuant to a compulsory purchase order, they acquired an area of land running along the boundary of the defendant’s land. The defendant retained a vehicular right of way over a small portion of the land in order to create an access to the new highway, pursuant to planning permission being granted by the claimants. The claimant’s contractors erected a fence along the remainder of the boundary with the defendant’s land. The defendant subsequently became aware that its access was not in a safe location. It wrote to the claimants suggesting that the access should be moved to another point along its highway frontage. In reply, the claimants raised a point that the defendant had no frontage onto the highway, since the claimants had retained a concreted “ransom strip” between the highway and the defendant’s land for the purpose of preventing any unwanted access. However, they represented that they might be willing to vary the location of the defendant’s access subject to the defendant paying the costs of creating the new access and surrendering its existing right of way. The claimants later granted planning permission for the new access and raised no further point about the absence of a right of way over the ransom strip. The access was constructed and the old one was stopped up. The defendant used the new access for several years without objection from the claimants. However, they later began to demand payment in return for a licence to cross the ransom strip. In proceedings brought by the claimants to establish their rights, issues arose as to whether: (i) the claimed ransom strip formed part of the highway; and (ii) the claimants were estopped from denying that the defendant had a permanent right of way over the new access. Held: The claim was dismissed. 1. The extent of a highway over which the public had rights of passage was a question of fact. In resolving that question, the court was not confined to looking at the physical feature on the ground. Where a road ran between fences, that fact alone did not give rise to any presumption that all the land in between was highway. It was first necessary to decide whether the fence had been erected for the purpose of separating land enjoyed by the landowner from land over which there were public rights of way. Only if that were established did a presumption arise that the land between the fence and the metalled surface of the road had been dedicated as part of the highway, and even then the presumption could be rebuttable by evidence to the contrary. In determining the issue, the court should take into account all that was known about the circumstances in which the fence had been erected: Hale v Norfolk County Council [2001] Ch 717 applied. In the instant case, the line of the fence was referable to a boundary that existed before the highway and there was no evidence that it had been erected in order to fence against that highway. Consequently, no presumption arose. Based upon all the evidence, including the detailed plans for the highway, the contract plans attached to the road-building contract, the adoption plan, and the decisions of the claimants’ committees in relation to the highway, the ransom strip did not form part of the highway. 2. None the less, in all the circumstances, the claimants were estopped from denying that the defendant had a permanent means of access to the highway over the new access route. The claimants had encouraged the defendant to believe that it would receive a new, permanent and safe access in substitution for the old without additional payment other than the claimants’ costs, which it had paid. The defendant had relinquished its old access in reliance upon that expectation. The claimants had in effect created a trap into which the defendant could fall, and their conduct was unconscionable. Although estoppel could not be used to validate an otherwise ultra vires act, the claimants could have granted the right of access by the exercise of statutory powers under sections 127 and 129 of the Highways Act 1980 or by the grant of a licence. A declaration to that effect did not require the claimants to make any disposal of land in contravention of section 123 of the Local Government Act 1972. The declaration was subject to the defendant agreeing to surrender its former right of way, to the extent that it still existed. Jonathan Small QC and Tamsin Cox (instructed by the legal department of Bexley London Borough Council) appeared for the claimants; Romie Tager QC and Henry Webb (instructed by TG Baynes) appeared for the defendant. Sally Dobson, barrister