His Honour Judge Mackie QC :
- This is a dispute about the continued existence and extent of an easement, a "Grant of Mutual Rights in respect of Fire Escape" entered into between neighbouring owners in Marylebone on 27 August 1947 ("the Grant"). This application is for summary judgment on the claim and counterclaim and/or for an order striking out the counterclaim. The parties are agreed that, to the extent justice permits, I should decide the issues which arise not merely determine whether or not they pass the summary judgment test. Those issues involve the rule against perpetuities, the permissible width of an easement, section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 ("the 1989 Act") and estoppel.
- The Claimant Mr Magrath, a solicitor, is the registered owner of 8 Bingham Place, London W1. The Defendant, Parkside Hotels Limited ("Parkside") is the owner of 7 Bingham Place and 25 Nottingham Place. Bingham Place is a mews. 7 Bingham Place backs on to 25 Nottingham Place, and 8 onto 27. I will refer to the houses as "7BP", "8BP", "25NP" and "27NP". 8BP and 27NP were until 1985 in single ownership and connected. 7BP and 25NP have throughout been physically connected and under single ownership run as an hotel. At the time of the Grant the owner was Shalimar Catering Co Ltd. Mr Magrath bought 8BP in May 2002.
- By a Deed dated 27 August 1947 made by Joseph Henry Jacobs, who then owned 8BP and 27NP and Shalimar the parties granted each other a mutual right of fire escape in the following terms:-
"NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED AS FOLLOWS:-
1. IN this Deed the following expressions have the following meanings that is to say:-
(i) "The right of fire escape" means and includes the following rights namely (1) the right of passage (from either of the premises having the right) for the purposes only of bona fide escape from fire (actual or believed) or panic or other circumstances (actual or believed) dangerous to life and (2) the right of passage to the nearest public highway over or through the premises over which such right may exist by any reasonable means whether on the ground or the roof or at any intermediate stage or stages each such right to be exercisable by the owners or occupier of the premises having the right of fire escape and all persons for the time being lawfully on such premises
(ii) "Staircase" shall include ancillary apparatus of all kinds including exits and entrances
(iii) "Ancillary Rights" means and includes the following rights exercisable at all reasonable times namely (1) the right to maintain in position and to inspect repair and when necessary renew all or any of the staircases over which any fire escape right may exist or hereafter exist hereunder (2) the right in accordance with the provisions hereinafter contained to alter existing staircases and erect new staircases and (3) to enter for the purposes of exercising such ancillary rights
2. The said Joseph Henry Jacobs hereby grants .... to the said Shamilar Catering Co Ltd the right of fire escape and ancillary rights over the property known as [27NP/8BP] and covenants with the Shalimar Catering Co Ltd to maintain and keep repaired such part of the fire escape as is now affixed to and upon the said [27NP/8BP]
3. The said Shalimar Catering Co Ltd hereby grants to the said Joseph Henry Jacobs the right of fire escape and ancillary rights over the property known as 25 Nottingham Place and 7 Bingham Place aforesaid and covenants with the said Joseph Henry Jacobs to maintain and keep repaired such part of the fire escape as is now affixed to and upon the said [25NP and 7BP] aforesaid
5. Nothing shall be done on either of the said premises which shall obstruct or interfere with the stability of any such staircases or apparatus
IN WITNESS whereof [etc.]"
- At the time of the grant Mr Jacobs had let 8BP/27NP to a Doctor Woodruff and he became a party to the Grant under paragraph 4 which reads as follows:-
"4. THE said Keith Montagu Cumberland Woodruff covenants with the said Joseph Henry Jacobs that he the said Keith Montagu Cumberland Woodruff will during the continuance of the term granted by the before mentioned Lease maintain and keep such part of the fire escape as is now affixed to and upon 27 Nottingham Place and 8 Bingham Place in good substantial repair and condition and will keep the said Joseph Henry Jacobs indemnified against all actions costs charges claims and demands which may arise in respect to the repair of the said fire escape or under any Bye-law or requirements of the Local Authority or the District Surveyor or otherwise in respect of the said fire escape as fully and effectually as if the terms of this Deed had been incorporated in the said lease"
- The Grant is headed "H.M. Land Registry" and is stated to be made under the provisions of the Land Registration Acts 1925 and 1936. The Deed of Grant is recorded on the Charges Register for 8BP. The Charge was accepted for registration on 6 September 1947 having been lodged by the solicitors dealing with the matter, Allen & Overy of 3 Finch Lane, Cornhill.
Facts agreed or not greatly in dispute
- In August 1947, 7BP and 8BP were two storey mews houses with pitched roofs. There was a ladder and one single metal catwalk at first floor level at the rear of 7BP which extended to the rear of 8BP giving access between the two properties. This catwalk was probably used as the escape route. In about 1966 7BP was extended by the erection of a further storey providing second floor accommodation with a flat roof on top. It seems that as part of that work the party wall between 7BP and 8BP was raised so that the original catwalk became blocked off. It seems that a new catwalk was created by the owners of 7BP at mezzanine level, the catwalk being attached to the rear wall of 7BP giving access to the flat roof of 7BP and to that at the rear of 8BP. The Defendant relies on a Fire Certificate dated 13 June 1975 to claim that the escape at this point was through a window into what was then described as 27NP. This certificate also shows another escape route at third floor level over the roof of 7BP and 8BP. There is a dispute between the parties about whether or not there was any accessible window let into the rear of 8BP. I decline on what still remains an application for the summary judgment to make findings of fact on this point, where the evidence is inevitably thin, despite the vigorous detailed submissions made by each side. It appears that in about 1986 8BP was developed by adding partial second floor accommodation with a sloping half mansard roof at the rear. It is common ground that there was a hatch in that sloping roof. In about 2000 Mr Ellison, the then owner of 8BP, built an internal staircase giving access onto the rear terrace with a ladder from there up to a small terrace which he formed on the flat roof above his new second floor accommodation. This work was done without planning permission. In 2001 Parkside lodged an application for full planning permission to redevelop its hotel and obtained consent on 15 November 2001. That consent was subsequently renewed in 2006 and 2009. The permission is to redevelop as a 21 bedroom hotel. Mr Bhanji of Parkside describes in his witness statement discussions with Mr Ellison. He says that discussions were held and resolved satisfactorily to ensure that a workable escape route was maintained either along the upper catwalk onto the flat roof behind 8BP or from the catwalk onto the roof at 7BP, across the roof to 8BP and then down the staircase onto the flat roof. I cannot determine on a summary judgement application what if anything was agreed between Mr Bhanji and Mr Ellison and I am not asked to do so. I am however asked to determine whether any oral agreement reached between the parties at that point has any legal validity given the requirements of Section 2 of the 1989 Act.
- In May 2002 Mr Magrath was registered as the proprietor of 8BP and he over the following two years redeveloped the interior adding a full width second floor with a flat roof and opening a glass door at second floor level onto a rear terrace formed on the flat roof at mezzanine level.
- In 2004 a party wall agreement was negotiated between agents for the parties. This is expressly stated not to affect or extinguish any of the parties' property rights. Efforts between the parties after that to reach a solution failed, relations deteriorating after Parkside's agents wrote an unfortunate letter seeking to impose unreasonable requirements on Mr Magrath and his successors as regards the provision and maintenance of an escape route. This led in time to these proceedings by which Mr Magrath now denies the existence of any right to fire escape at all.
Issues arising on this application
- The Particulars of Claim seek a declaration that the Grant is void because it was merely personal to the parties and did not create property rights. Having regard to the existence and terms of the deed and its submission and acceptance for registration that claim seems at first sight ambitious but it is not for determination by me. This is because while the point is not abandoned by Mr Weatherill QC he accepts that it is an arguable point and neither party seeks its final determination on this application.
- The points that the Claimant raises on this application are:-
a. The purported grant of an ancillary right, not limited to take effect within the perpetuity period, to erect and use new staircases creating new access points and not then in existence is void and unenforceable because it offends the rule against perpetuities;
b. The right of fire escape in clause 1 of the Grant is defined in such objectionably wide and undefined terms as to be inimical to the concept of an easement;
c. If and to the extent that the Defendant asserts that rights it currently contends for arise by some contractual grant any such agreement would have to be in writing to satisfy the requirements of the 1989 Act or its predecessor; and
d. The Claimant is prepared to assume, but only for the purposes of this application, that each of the elements which comprise a good case for proprietary estoppel are here present, it being conceded for this purpose only that there were relevant understandings between Mr Bhanji and Mr Ellison. The Claimant contends however that there can in any event have been no detriment having a causal link to the assurances relied upon. There is no pleaded detriment because there is none and the claim based on estoppel must therefore fail.
- I now deal with the parties' submissions and reach conclusions about each issue. I will not address in any detail the submissions made to me about the facts in this case turning as they did on detailed consideration of documents and photographs. The provenance and significance of some of the documents are in dispute. It is inappropriate to grapple in any detail with these matters on a summary judgment application when I have only a partial picture and no assistance from live witnesses.
- The Claimant's position is as follows. The Grant recognises that the rights of fire escape described in Clause 1(1) were incapable of being exercised otherwise than by using the "Staircases" (as widely defined) as they then existed. The purpose of the grant of Ancillary Rights was to enable the owners to keep the "Staircase" in usable condition. The Ancillary Rights purport to amount to mutual rights to maintain and use for the purpose of bona fide escape from fire any of the staircases then found on either property in 1947, to alter these and also to erect entirely new staircases and create entirely new exit and entrance points for the escape in the future. The grant of an ancillary right, exercisable at a future uncertain date, not limited to take effect within the perpetuity period, to erect and use new staircases creating new access points not then in existence is void and unenforceable. This principle is illustrated by two cases Dunn v Blackdown Properties Ltd  Ch 433; and Adam v Shrewsbury  1 P&CR 474. It is common ground that there are now no 1947 staircases capable of giving access from 7BP to 8BP. The only "Staircase" relied upon by Parkside, the higher catwalk at mezzanine floor level, was not in existence in 1947 and is attached to a party wall which was only raised to its present height in about 1966. Parkside's plans for redevelopment involve raising the party wall and removing the existing catwalk to use access points attached to parts of 8BP which did not even exist in 1947. The perpetuity issues arise at common law, this case predating the Perpetuities and Accumulations Act 1964 so the Defendant is not entitled to "wait and see"
- The Defendant's position is as follows. It is common ground that the rule against perpetuities does not apply if the Grant of rights can be exercised immediately. On its true construction the Grant created an easement capable of exercise immediately by all reasonable means for emergency purposes, over the then-existing escape apparatus, and by any other reasonable means. The courts have not found a right to be void even where there is a grant of an immediate right requiring works in the future to allow the work to be exercised – see S E Railway Co v Association Cement Manufacturers (1900) Ltd  1 Ch 12 (High Court). Further in a "pure" perpetuity case the courts will strive to obviate the obvious unfairness of such a result by finding, for example, that there was a right in the nature of a restrictive covenant not to interfere with, for example, a right to cross a tramway – see Sharpe v Durrant  55 S.J. 123. Further Section 162(1)(iv) of the Law of Property Act 1925 disapplies the rules against perpetuities for ancillary works. Moreover it is open, as a matter of law, for the parties to easements to agree to vary the physical parts of a right of way. The work on both properties was clearly done by cooperation between the owners from time to time.
Perpetuities – Decision of the Court
- In Dunn v Blackdown Properties Ltd Cross J, as he then was, was concerned with two conveyances which passed, amongst other things, the right for the grantees, their heirs and assigns to use the sewers and drains "now passing or hereafter to pass" under a private road. The court held, amongst other things, that the grant of the right to use the sewers and drains "hereafter to pass" was a grant of an easement to arise at an uncertain date in the future not limited to take effect within the perpetuity period and was, therefore, void. The analysis of Cross J addresses the apparent inconsistencies between South Eastern Railway Co v Associated Portland Cement Manufacturers (1900) Ltd and Sharpe v Durrant and it is also expressly approved in the judgment of Neuberger LJ, with whom Ward and Clarke LJJ agreed in Adam v Shrewsbury so I will set it out at a little length. After, at 438, saying "there is no doubt that the rule against perpetuities applies to grants of easements" the judge says "It follows that, where the grant is not immediate but is of an easement to arise in the future, it will be void unless it is limited to take effect only within the perpetuity period". He then says this:-
"It is not, however, always easy to decide whether the grant in question is of an immediate right or of a right to arise in the future. The difficulty may be illustrated by comparing South Eastern Railway Co. v Associated Portland Cement Manufacturers (1900) Ltd. with Sharpe v. Durrant.
The facts in the former case were that, by a conveyance made on December 31, 1847, one John Hales Calcraft conveyed to the South Eastern Railway Co. a strip of land to be used by them as a railway line, reserving to himself, his heirs, appointees and assigns, inter alia, the right to construct at his or their expense a tunnel or archway under the proposed railway where it passed or was intended to pass through or over the land thereby conveyed. In 1907 the defendants, who were assignees of the benefit of this reservation, wished to construct a tunnel under the railway line, but the railway company claimed, among other things, that the reservation was void for uncertainty and for perpetuity.
Swinfen Eady J. held that the reservation was not void for uncertainty, since it was for the vendor, Calcraft, or his assigns to decide where the tunnel was to be built when he or they wished to build it. He dealt with the objection of perpetuity in two ways. First, he held that the right reserved was an immediate easement and not an easement to arise in the future whenever the vendor, Calcraft, or his assigns decided to build the tunnel. Secondly, he pointed out that, as the plaintiff railway company was one of the original contracting parties, the agreement could be enforced against it by the assignee of the benefit of it without regard to the rule against perpetuities. The case went to the Court of Appeal, which affirmed the judgment on this latter ground without expressing any view on the question whether the reservation was of an immediate or a future easement.
The facts in Sharpe v Durrant were that in 1889 a vendor conveyed to a purchaser a strip of land for a tramway, reserving the right to cross the line at two points to be selected by him, and the purchaser covenanted to provide crossings at those points. In 1892 the vendor selected one crossing point and notified his selection to the purchaser, but no crossing was made. The purchaser subsequently sold the strip to the defendant.
Warrington J. held that the reservation was void for perpetuity on the ground that, until the selection was made, no easement was created. He went on, however, to hold that the covenant to provide crossings implied a negative undertaking not to interfere with the crossing which bound the land in the hands of the defendant under the doctrine of Tulk v Moxhay. Sharpe v Durant was affirmed by the Court of Appeal, but there is no report showing whether or not that court accepted the view of Warrington J. that the reservation was void for perpetuity.
I do not find the views expressed by Swinfen Eady J. and Warrington J. as to the effect from the point of view of perpetuity, of a right given to the grantee to select the site of an easement at all easy to reconcile. I do not think, however, that I am compelled to choose between them in this case. If there had been a sewer under Pine Tree Hill at the dates of the grants to her predecessors in title the plaintiff could have claimed, on authority of the Associated Portland Cement case, that the owners of the pink and blue land had from the first a right exercisable at any time to make connections with and use that sewer or any sewer substituted for it, but, as there was no sewer under the road, the plaintiff must rely on the words "or hereafter to pass." It is not for the owners of the pink or blue land to decide whether or not a sewer will or will not pass under the road in future. That is for the owners of the road to decide, and I do not see how this part of the right granted can be treated as anything but the grant of an easement to arise at an uncertain date in the future."
- The Court of Appeal in Adam v. Shrewsbury, at paragraphs 40-43 applied this reasoning and considered that it was of wider application and would apply as much to a right of way over a road which had yet to be constructed as to rights to drainage through pipes to be constructed in the future. In the present case I am concerned with the right to maintain staircases over which any fire escape right "may exist or hereafter exist hereunder" and with the right to alter "existing staircases and erect new staircases". As I see it the description of these rights as "Ancillary Rights" is not a relevant distinction between the facts of this case and those in the authorities to which I have referred. Further, I do not accept Mr Radley-Gardner's submission that the court should strive to overcome what would be, as he contends, the obvious unfairness of these particular rights being void. Quite apart from Mr Weatherill's response that when dealing with the law of land the court should keep a dry eye considerations of justice seem to me to point both ways when there is a potential for building completely new staircases of a scale and in places undreamed of in 1947. Moreover the Court in Adam v. Shrewsbury, despite being composed of three members who, if I may say so, would be particularly unlikely to overlook such matters, appeared to see no injustice in the application of the rule against perpetuities.
- Section 162 of the Law of Property Act 1925 provides, in relevant part, as follows:-
"Restrictions on the perpetuity rule
(1) For removing doubts, it is hereby declared that the rule of law relating to perpetuities does not apply and shall be deemed never to have applied –
(d) To any grant, exception, or reservation of any right of entry on, or user of, the surface of land or of any easements, rights, or privileges over or under land for the purpose of –
(iii) executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon;
(iv) constructing, laying down, altering, repairing, renewing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, electric wires or cables or other like works.
(2) This section applies to instruments coming into operation before or after the commencement of this Act."
- In Dunn v Blackdown Properties Ltd Cross J said, in relation to sub-paragraph (iv):
"Having regard to the context in which it appears, I doubt very much whether sub-paragraph (iv) was intended to do more than make it clear that, if A had a right of drainage or some similar right over the land of B itself which was not itself void for perpetuity, ancillary rights of constructing and repairing works to make the basic right effective were not to be treated as void for perpetuity because they might be exercised outside the perpetuity period. To construe sub-paragraph (iv) as validating grants of rights of drainage or similar rights to arise at some uncertain date in the future would lead to very odd results."
- Against that guidance Section 162 does not, as I see it, save the provisions otherwise void for perpetuity. The erection of new staircases was not an activity that naturally falls within (iv) and is not an "addition to any adjoining land" within (iii) which Mr Radley-Gardiner also sought to rely on in argument.
- When reading the grant as a whole and in context I attach no significance to the fact that the right to erect new staircases appears as one of the Ancillary Rights. This feature of the Grant cannot, as I see it, save the provision from the effect of the rule against perpetuities. The parties could, had they wished, have made provision to avoid the effect of the rule. They did not. The Claimant succeeds on this aspect of the application.
Impermissibly wide and undefined? – submissions of the parties
- The Claimant's argument is as follows. The rights contained in the Grant are not limited to entry onto the servient tenement using existing "staircases" and then proceeding by any prescribed route to safety. Even allowing for the fact that the user is restricted to emergency the rights purport to permit occupiers of the dominant tenement to go on to the servient tenement at any convenient point. The right to proceed "over or through ... by any reasonable means whether on the ground or the roof or at any intermediary stage or stages ..." is nothing more than an unenforceable right to roam because the owners of 8BP would have to hold their whole property permanently available for use as a fire escape. The starting point is a construction of the 1947 Grant, a process which involves divining the intention of the parties as to the use which in each case might be made of their respective properties in the exercise of the rights granted if a need to escape arose. Mr Weatherill QC submits that this involves applying the principles in Investors Compensation Scheme Ltd v West Bromwich Building Society  1 WLR 986 at 912. The most important extrinsic evidence relevant to construction is the physical characteristics of the two tenements. The claimant submits that the parties must have intended some limit on the escape routes. An indication of this is the expression "by any reasonable means", a pointer that the parties had in mind the means of escape available in 1947. It is submitted that the rights granted were only intended to be exercised in a manner consistent with the use of the then existing staircase. At the very least it is plain that the parties to the 1947 grant did not intend that extremely broadly phased rights of fire escape should be exercised over any part of 8BP which might suit the defendant.
- Mr Weatherill supports those submissions with the following four propositions which I take from paragraph 29 of his skeleton argument:-
(1) Where the site of a way over which a right is granted is not physically apparent, it is for the servient owner to indicate where it is to be, and once he has done so it cannot (except by agreement) be altered;
(2) Whilst the servient owner may not derogate from his grant, the dominant owner cannot make unreasonable demands; although the dominant owner may ordinarily choose his point of access, that may be circumscribed by physical limitations at the date of the grant;
(3) The exercise of any easement is qualified by the necessity to do so civiliter, in the manner least burdensome to the servient owner;
(4) Rights of way should, generally speaking, have a terminus a quo and a terminus a quem, and there is generally no "right to roam" entitling the dominant owner to go at will over all or any part of the servient tenement it might choose – otherwise the whole of the servient tenement would have to be kept permanently available to the dominant owner and the servient owner would be deprived of all privacy and use of his property.
- Mr Weatherill submits that the rights granted were only intended to be exercised in a manner consistent with the use of the then existing "Staircases", the definition of which includes exits and entrances. He says that it is for the Defendant which seeks to exercise the rights of escape to establish the means by which they were intended to be exercisable. The only burden of proof imposed on the Claimant would arise if the reasonableness or otherwise of the means falls into question. His skeleton argument deploys all these points in support of a relatively narrow construction of the grant but the Particulars of Claim challenge the existence of any rights of Parkside over, across or through the Claimant's property.
- The Defendant's position is as follows. The 1947 grant gives rights of access to the "nearest public highway" and is a right "over and through" the premises "by any reasonable means". If, as the Claimant contends, there is no right to pass through 8BP then there is no right to access a public highway and this would be contrary to the express words of the grant. The fact that there is no red line showing the means of escape does not mean that Parkside has a right to roam or wander. Mr Radley-Gardner points to cases collected under the heading "route of the way" at paragraph 9-75 onwards in Gale on Easements 18th Edition 2008 showing that the general requirement for "terminuses" is not an invariable one, it all depends on the construction of the particular grant.
"Impermissible"- Decision of the Court
- Despite the reliance by both sides on aspects of the case law this issue is, as I see it, mainly one of construction of the Grant. Much of the guidance in the cases appears to turn upon the relevant facts and the terms of the deed under consideration. It would be wrong to apply some of the observations made in the cases about particular facts to strike down altogether the considered agreement by the parties to this Grant to provide rights of escape to each other in the event of emergency. I do not detect in these cases any policy against the provision made by the parties to the Grant. Neither do I see the Grant as creating a "right to roam". The right of fire escape will, by its nature, be exercised only rarely and unexpectedly. Respecting that right will in most cases involve doing no more than what would be required by the duty of common humanity. I do not read the parties as requiring that the right of passage should be from one fixed point to another or be unchangeable with time. I do not read the right of fire escape as being limited exclusively to the Staircase as broadly defined and described under Ancillary Rights. Indeed the fact that it is not so limited forms part of the Claimants' argument in support of the existence of an impermissible "right to roam". If the parties had intended the easement to be so limited the grant would have said that escape would only be available via this specific staircase or would otherwise have prescribed the route. Further the parties contemplate that the rights may be exercised over completely new staircases (albeit in a fashion which breaks the perpetuities rule). But the specific references to staircases even though defined as "ancillary components of all kinds" are an indication that the right of fire escape was to be provided in the comparatively basic form which the parties would have contemplated in 1947 bearing in mind that they were living in the Marylebone of Angus Wilson, not that of Ian McEwan. I see no justification for Parkside to demand whatever means of escape it may require from time to time by reason of the expansion of its building, the development of its business and of safety requirements and an increasing number of guests. The parties cannot have intended that as one property grew bigger and bigger and the duties imposed on its owners towards hotel guests became ever greater, the rights of the other owner to enjoy the use of his property would increasingly diminish. In particular, I see nothing in the grant which could justify the imposition on Mr Magrath of all or most of the "typical measures" of the letter from Parkside's architect of 27 October 2009 which would have involved the following:-
a. Lighting to the external route from 7BP across the party wall parapet and down to your terrace;
b. Possible small steps from the parapet capping to your roof;
c. A stair flight from the gate in your balustrade down to your rear terrace;
d. Facility for keyless entry from the terrace to your second floor internal stair landing;
e. Lighting of the stair down to the street including emergency lighting if not already installed;
f. Facility for access through the street door to the outside – usually snibs on the door locks;
g. Electronic sounder in the stair hall to be set off by the hotel's alarm system."
- The exercise of rights of this kind, as use of the adjective "reasonable" makes clear, requires the owners to make sensible accommodation with each other as the years go by. The court can if necessary determine the extent of "any reasonable means". That is however not an exercise which the court can carry out on an application for summary judgment when many of the facts are either in dispute or have not been fully investigated. It follows that on this aspect of the claim I do no more than decide that the easement is not invalid on the grounds put forward by the Claimant and indicate that a proper construction of it would be unlikely to entitle Parkside to exercise rights to the extent which they at present have in mind. It is, at least initially, for the parties to consider the interaction of my conclusions on the first two issues.
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989
- The Claimant identifies references in Mr Bhanji's witness statement to agreements for access to 8BP for purposes of fire escape. The Defendant contends that the Claimant's predecessor agreed certain matters including arrangements for the installation of railings on the roof of 7BP. Parkside appears to rely partly on an agreement but also, and primarily, on proprietary estoppel. The Defendant adds that, to the extent to which it may rely upon an agreement, it is not one to which Section 2 applies. There is therefore no requirement that the agreement be, or be recorded in, writing.
- In principle the position is clear beyond doubt as appears from the following passage at 2-22 of the current edition of Gale:-
"On and after September 27, 1989, the position is governed by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. This provides that a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each. An easement is within the definition of "interest in land". The grant of an easement is a "disposition". The terms may be incorporated in a document either by being set out in it or by reference to some other document. The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one), must be signed by or on behalf of each party to the contract."
- The Defendant responds that the agreements upon which it relies do not fall within Section 2. Those arrangements involved practical implementation of the rights created by the parties. Section 2 is concerned with new property rights not with the cooperation between the parties which is required and obviously desirable. That cooperation may lead to the identification of the altering of routes but it is not an agreement that falls within Section 2. The Claimant accepts that the formalities required by Section 2 do not apply to minor changes to a right of way or something similar but they do apply to an assertion of rights to access over 8BP by a route which could not have existed in 1947. This would be a completely new grant which must have been wholly outside the contemplation of the parties when they reached agreement in 1947. If that were so the Claimant is right. The decision of Lightman J in Greenwich Healthcare NHS Trust –v- London and Quadrant Housing Trust 1998 [1WLR] 1749 relied on by Mr Radley-Gardner does not help the Defendant because the starting point in that case was the assumption that a servient owner has no right to alter the route of an easement of way unless expressly or impliedly conferred by the deed. There is no such implication alleged here.
- It is not possible for the court to make a useful finding on this issue at the present stage. There is obviously a dividing line between arrangements not within Section 2 and those agreements which are invalid without its formalities being met. For that reason the time for determination of whether or not Section 2 applies will be at the point in the action when the court is considering what if any agreements were made and, if so, what their terms were.
- Accepting, for the purposes of this application, that the other elements of a good case for proprietary estoppel are present, the Claimant submits that the claim is bound to fail because no detriment having a causal link to the assurances relied upon has been pleaded. It is clear from the judgment of Robert Walker LJ, as he then was, in Gillett v Holt  Ch 210 at 232A-F that pleaded reliance is required. There is no plea of detriment in the Defence and Counterclaim so there is no answer to this submission.
- As the pleading currently stands the Defendant's claim of estoppel is difficult to discern. The various acts and assurances relied upon are for the most part pleaded as being acknowledgements of existing rights rather than assurances, the case being developed to a degree by Mr Bhanji's witness statement and then formulated to an extent in Mr Radley-Gardiner's skeleton argument in terms of express assurances and also those manifested by conduct. Mr Weatherill made detailed submission about what the estoppel case appears to be to demonstrate not only that detriment has not been pleaded but also that any such claim would have no real prospect of success.
- From the materials before me it is not clear that the absence of detrimental reliance argument is one which the Defendant has had a proper opportunity to consider. It forms no part of the Application Notice and was not anticipated in Mr Radley-Gardiner's skeleton argument. Although the Claimant's argument seems to be unanswerable on the pleadings as they stand I do not think it right to dismiss the claim for estoppel without giving the Defendant an opportunity to amend its case should it wish to do so. That pleading should state with precision and clarity all the matters relied upon, including detriment, to make good its case. If the Defendant wishes to take this course then it must bear the costs of the exercise. The Claimant will be free should it wish to do so to seek to strike out the amended claim for estoppel. I take this course because it would be disproportionate to strike out an estoppel case altogether simply because of what may be inadequacies in a pleading only drawn to the Defendant's attention at a late stage.
- The Claimant's application succeeds on the issue of perpetuity, but fails on the claim that the grant is impermissibly wide and undefined. The claim based on Section 2 of the 1989 Act cannot usefully be decided at this point. The Claimant's application about the Defendant's claim of estoppel is well-founded but the Defendant will have an opportunity, subject to terms, to amend its pleading.
- I should be grateful if the parties will let me have corrections of the usual kind, a draft order preferably agreed, and a note of any points they seek to raise at the hearing not less than 48 hours before the hand down of this judgment.
- If outstanding matters can be resolved by agreement then the parties need not attend the hand down. This case is a dispute between neighbours which has got out of hand as a result of an unwise letter from the Defendant's architect. Given that fact and the existence of a grant which, as I see it, requires agreement and accommodation between the parties as the years go by, efforts should be made to settle this case. If the matter is to go to trial then it would make sense for it to be dealt with at Central London Civil Justice Centre by one of the Specialist Chancery Judges, a tribunal with particular expertise in this area of law and special knowledge of the location of the properties.