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    3 January 2013

    Joyce v Epsom and Ewell Borough Council

    Michael Fahy and Robert Hickford consider the case of Joyce v Epsom and Ewell Borough Council [2012] EWCA Civ 1398 regarding property access rights.


    The claimant purchased a residential property in Epsom with neighbouring land owned by the local authority. During his predecessor’s ownership, proposals had been made to develop the local authority land into a supermarket. This raised concerns with the claimant’s predecessor and various other local residents concerning access to their properties. There was an access road to the rear of the claimant’s property that was also owned by the local authority and discussions took place about the use of that road. Access was granted along the road, and subsequently, the supermarket developer built gates to separate the claimant’s property and the access road, and the claimant’s predecessor constructed and paid for a hardcore driveway leading from the gates, installed by the supermarket.

    Following the claimant’s purchase of the property, he wanted to carry out some development and to use the access road as an obvious means of transporting the required equipment. The local authority contested this and informed the claimant that he would have to pay a premium for such use. The claimant issued a claim of proprietary estoppel, claiming that the local authority had acted unconscionably when they refused to accept the claimant’s claim to be entitled to the right of way. The claim was made because of the agreement made when his predecessor owned the property, and the actions that took place as a result.

    Court of Appeal Decision

    The claimant appealed, on the grounds that the local authority’s lack of knowledge was not justified on the evidence, and was in any event not relevant to the outcome of the proprietary estoppel claim.

    The appeal was allowed on the grounds that, even if the precise details of the work that the claimant’s predecessor carried out were not known to the local authority, it was aware that some work had been undertaken, as that had been his intention throughout the process. There was a substantial degree of mutuality in the decision to grant the right of way, as both the local authority and supermarket developer wanted to find a solution to the access restrictions that the construction of the supermarket caused. Crucially, the court held that due to the substantial work of construction of a path from the gates carried out by the claimant’s predecessor, he had suffered a clearly quantifiable detriment. This was a direct result of his understanding, from the local authority, that a right had been granted, and therefore it was only equitable that the right of way should be deemed to be granted.


    It is clear from this case that, despite the lack of a formal grant of a right of way, such a right can be held to exist. The key element is the importance placed on the actions of the parties where there is no legal document. Once the intentions of the claimant’s predecessor were known to the local authority, it should have instigated some preventative action, or at the very least contacted the claimant’s predecessor to establish his intentions, if it had no intention of granting the right of way. Equity in these matters will weigh heavily in the mind of the Judge, and it would not sit comfortably to allow a lay-person to be out of pocket having relied on the actions of another party.

    It is crucial in such circumstances to make your intentions explicitly clear wherever possible, as this avoids the risk of action being taken based on misunderstandings, and ensures the intentions of both parties are more likely to be met.