|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> London Borough of Bexley v Maison Maurice Ltd  EWHC 3192 (Ch) (15 December 2006)
Cite as:  EWHC 3192 (Ch)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF BEXLEY
|- and -
|MAISON MAURICE LIMITED
Mr Romie Tager QC and Mr Henry Webb (instructed by TG Baynes) for the Defendant
Hearing dates: 1, 2, 3 November; and 5 and 6 December 2006
Crown Copyright ©
Mr Justice Lewison:
|The basic facts||2|
|Was the ransom strip part of the highway?||7|
|Acquisition and construction of the highway||7|
|Extent of the highway||11|
The basic facts
"Your client does not own any frontage to the new road. The Council has a ½ metre strip of non-highway land between the yard and the road. This strip was deliberately left there to prevent unwanted access."
"No approach has been made to him about moving the access; neither has an approach been made to the Supervising Engineer. He might be prepared to discuss a variation to the location of the access subject to the Council's costs and cost of works being paid by your client, the Chief Engineer's approval and the surrender of the existing accessway. He would only be prepared to discuss this after completion of the matter."
"… moving the access eastwards is acceptable but will be subject to planning permission."
"Moving existing crossover to new position"
"It seems engineers are happy with the proposed location, and given its more central location it is likely to be more appropriate than the existing position. It is not the position of either valuers or engineers to totally restrict this site from having access to Albion Road, and there have been no problems identified in relation to the use of the existing access. A condition can be used to extinguish the existing access & therefore maintain only one access to the site furthermore the Council hold a ransom strip along the back edge of the footway for the length of Albion Road thereby giving a greater degree of control."
"[NOTES: The applicant must seek the issue of a licence from the Local Authority in order that vehicles can be allowed passage across the land owned by the Authority. The land stands between the public highway and Butler's Yard.]"
"I would be grateful if you could take note of the points made with respect to forming the new access: principally that the new access is subject to the issue of a licence and that the existing access should be closed and the footway reinstated.
You will appreciate that it is still the desire of the Local Highways Authority to maintain control of accesses onto Albion Road in order to preserve its position in the event of a comprehensive development of the area being proposed."
"Planning permission does not over-ride any restrictive covenants, or legal rights and interests which other people (including this Council) may have over the land or property."
"I refer to the above-mentioned development … and enclose herewith your decision notice granting planning consent.
I would like to take this opportunity to inform you that during the determination of the application the Chief Engineer commented as follows:
"The applicant must seek the advice of the Works and Contracts Department concerning the construction of the new vehicle crossover and the reinstatement of the existing crossover/access. The applicant will be responsible for the cost of reinstating the existing access and the new access."
I would be pleased if you would take these comments on board before implementing the enclosed consent."
"Depending on whether you feel that the Council should charge for the relocation of the access, and a valuation appraisal being undertaken, I would suggest that as a minimum the owners be required to pay the Council's full costs in surrendering the right to the current access and the grant of a new access. In addition they may be required to reinstate the current access to the Council's satisfaction."
i) Paying contractors to stop up the old access;
ii) Constructing and erecting gates for the new access;
iii) Incidental resurfacing;
iv) Moving storage facilities and
v) Moving the staff car park.
"It has come to my notice that the access provided to your premises … from Albion Road has been moved and does not now agree with the right of way granted to you in 1993.."
Was the ransom strip part of the highway?
Acquisition and construction of the highway
"… there will be a small strip of land between the rear boundary of the highway and the remaining part of the access way to Butler's Yard. It will be the [intention] of the Authority to grant the necessary easement over this small strip of land to enable access to the new highway to be maintained."
"Plots 5, 6, 7, 8 and 9 contain properties which are physically affected by the alignment of the proposed road. Plots 5a, 6a, 7a, 8a and 9 are required to form an environmental strip with mounding and barriers to reduce noise to the houses in Methuen Road."
"The Southern Relief Road proposal, which is shown on drawing No. AO/1252/6 (BEX 4:P) is generally designed to be of dual 7.2m carriageway, a 2m central reservation, and 2m footways…"
"The private means of access to Butlers Yard is situated almost centrally in the length of Methuen Road and is severed by the S.R.R. It is proposed that this access is stopped-up and that a new temporary access be permitted to the S.R.R. pending any redevelopment of the site. The temporary access would be to and from the northern carriageway only, and this, in turn, would be closed off after establishing permanent access to the site in conjunction with redevelopment."
"The route of the SRR … makes possible the provision of a highly desirable rear access to the premises fronting the south side of Broadway where, at present, vehicular access across the wide pavements are the cause of much vehicular/pedestrian conflict. I regard the elimination of this dangerous conflict as being a first priority."
"It enhances the development potential of land bounded by Broadway, Oaklands Road, Royal Oak Road and the SRR."
Extent of the highway
i) The mere fact that a road runs between hedges or fences does not give rise to any presumption;
ii) It is necessary to decide, as a question of fact, whether the fence was erected in order to separate land enjoyed by the landowner from land over which the public had rights of way;
iii) If that intention is established, then there is a presumption that the land between the fence and the metalled or made up surface of the highway has been dedicated as part of the highway;
iv) But the presumption, even where it exists, is rebuttable by evidence to the contrary;
v) There is no presumption that a fence which does in fact separate land over part of which there is a public right of way from land enjoyed by the landowner has been erected in order to demarcate the boundary of the highway. Whether it has or not is a question of fact in each case;
vi) In deciding that question, the court must take into account everything that is known about the circumstances in which the fence was erected.
"Any person may request the highway authority for a highway maintainable at the public expense to execute such works as are specified in the request for constructing a vehicle crossing over a footway or verge in the highway, and the authority may approve the request with or without modification, or may propose alternative works or reject the request; and in determining how to exercise their powers under this subsection an authority shall have regard to the matters mentioned in subsection (5) above."
"As soon as practicable after such a deposit has been made with an authority the authority shall execute the works as approved or proposed by them."
i) The power was inapplicable; and
ii) The Council had not in fact exercised this power anyway.
"The highway authority for a highway may agree with the occupier of any premises and any other person having an interest in them that any private means of access to the premises from the highway shall be stopped up by that authority in any way which seems to them appropriate but not so as to obstruct any highway; and an agreement under this section may make provision for the payment by the highway authority to the other party of compensation in respect of the damage (if any) suffered by him in consequence of the stopping up of the means of access."
"(1) Without prejudice to their power to provide a new means of access to any premises when authorised to do so by an order made under any enactment, a highway authority—
(a) who by virtue of an order under section 124 above or an agreement under section 127 above have stopped up a means of access to any premises or propose to do so; or
(b) who consider it necessary or expedient in connection with the construction, improvement or alteration of a highway to provide a new means of access to any premises,
may, subject to subsection (2) below, provide a new means of access to those premises from any highway or proposed highway.
(4) The provision of a new means of access to any premises from a highway under this section or under or by virtue of section 124, 125 or 127 above includes the provision of a road, path or other way on those or any other premises."
"[I]t is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round."
"Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."