Bexley London B.C. v Maison Maurice Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewison |
| Judgment Date | 15 December 2006 |
| Neutral Citation | [2006] EWHC 3192 (Ch) |
| Date | 15 December 2006 |
| Court | Chancery Division |
| Docket Number | Case No: HC 05 02894 |
[2006] EWHC 3192 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Lewison
Case No: HC 05 02894
Mr Jonathan Small QC and Ms Tamsin Cox (instructed by Assistant Director, Legal Services, Bexley London Borough Council) for the Claimants
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
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable 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
Estoppel 13
The basic facts
Maison Maurice Ltd is a wholesale supplier of drinks to the licensing trade. Since 1984 it has occupied property in Bexleyheath known as Butler's Yard. Originally Butler's Yard did not abut the highway. It had one vehicular means of access to the north between some shops onto the Broadway, the main shopping street. It had another vehicular means of access along a strip of land to the south, running between two houses and their gardens, and debouching into a residential street called Methuen Road. In the early 1990's the local authority, the London Borough of Bexley ("the Council"), decided to build a new relief road. This plan was carried into action and in due course the relief road, which was completed in 1991, became known as Albion Road. It is a dual carriageway. The acquisition of land on which to construct Albion Road involved the acquisition of property on the north side of Methuen Road, abutting the southern boundary of Butler's Yard. The new road ran through the old access to Methuen Road, which was in practice closed off, at least during the construction of the new road. The Council, appearing by Mr Jonathan Small QC and Ms Tamsin Cox, says that it retained a strip of land, which was not dedicated as highway. The strip of land was approximately 0.5 metres wide where it ran along the southern boundary of Butler's Yard, but was much wider in other places. It was deliberately done so as to enable the local authority to control access to the highway. It was, in short, a ransom strip. This is disputed by Maison Maurice, appearing by Mr Romie Tager QC and Mr Henry Webb, who say that at least where it adjoined Butler's Yard, the whole of the strip was included in the highway.
On 8 March 1991 the Council granted planning permission for the construction of an access, 4.7 metres wide, from Butler's Yard onto Albion Road. Nothing was said about the ransom strip, of whose existence Maison Maurice was unaware at that time. The planning permission was granted subject to a condition that the use would cease and the land would be restored on or before 8 March 1994 unless prior approval for an extension had been obtained. The reason for the condition was to enable the situation to be kept under review. That permission has never been renewed.
The new road was opened in April 1991.
As I have said, Albion Road is a dual carriageway. On the northern side of the carriageway there is a footpath. The footpath is mostly paved with white concrete paviours, but it has a key pattern in red brick along the edge further from the carriageway. Beyond the red brick, at least where the footpath runs alongside the southern boundary of Butler's yard, there is a slightly sloping strip of concrete; and at the northern edge of the concrete, forming the southern boundary of Butler's Yard, stands a close boarded fence. The Council's road contractors erected the fence as part of the highways contract, probably in March 1991. They also laid the sloping concrete either as part of the original road contract, or as a later variation of that contract. It is this concrete strip which is said to be the ransom strip. The line of the fence followed the line of the old boundary fence that had separated Butler's Yard from the back gardens of the houses in Methuen Road. However, the Council's contractors erected part of the fence in the wrong place at the south eastern and south western corners of Butler's Yard. The fence in fact enclosed within Butler's Yard more land than was comprised in Maison Maurice's paper title. In its claim form the Council claimed possession of those two corners, but Mr Small wisely abandoned both claims; the first at the start of the trial and the second at the conclusion of the evidence. The concrete strip has been swept and kept clear of weeds by the Council and, it seems, the funds to do so have come out of the highways budget.
On 5 March 1990 the Council had served on Maison Maurice both a notice to treat and a notice of entry pursuant to the London Borough of Bexley (Bexleyheath Southern Relief Road) Compulsory Purchase Order 1987. Both related to the access strip that had been used by Maison Maurice to gain access to Methuen Road. However, the necessary conveyancing took some time to complete. It seems that a draft transfer was sent to Maison Maurice's solicitors on 5 May 1992. On 12 May 1992 Maison Maurice's solicitors asked for confirmation that a small sliver of land at the north of the access strip that was to be transferred, shown brown on the transfer plan, directly abutted onto the publicly maintainable highway. The Council confirmed this on 29 May 1992. By a transfer dated 22 March 1992 (but evidently backdated) Maison Maurice Ltd transferred the access to Methuen Road to the Council. However, the transfer reserved a vehicular right of way over a small portion of it, 4.7 metres wide. This was the sliver of land coloured brown on the plan which had been the subject of the previous query. This 4.7 metre right of way coincided with the width of the access for which planning permission had been granted.
Shortly after the new access and gates had been constructed Maison Maurice realised that because the access was on a blind bend in the new relief road, was close to a set of traffic lights, and was relatively narrow, it was not safe. They raised the point with officers of the Council, but obtained no satisfactory response. On 14 August 1992 their solicitors wrote to the Council suggesting that it would be in the interests of road safety for the access to be moved further to the east along the boundary of Butler's Yard. In their letter they said that "our client does of course own a fairly large frontage to the new relief road, and it makes no difference to our client where the gates are situated along this frontage." The Council's solicitor took instructions from the Chief Valuer and Estates Officer and replied on 28 August 1992. His reply included the following:
"Your client does not own any frontage to the new road. The Council has a 1/2 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."
It seems that Maison Maurice's planning adviser, Colin Luther, wrote to the local authority on 20 October 1993, but the letter has been lost. It is not possible, therefore, to know exactly what it was that Mr Luther asked for. However, in reply to it the Assistant Chief Engineer replied that:
"… moving the access eastwards is acceptable but will be subject to planning permission."
He did not mention any need to obtain the Council's permission as landowner. On 10 July 1995 Mr Luther submitted a planning application on behalf of Maison Maurice. He described the proposed development as:
"Moving existing crossover to new position"
The plan attached to the application showed that the existing opening was to be closed and that a new access, 6 metres wide, was to be constructed further to the east, debouching onto a new crossover. A copy of the application (or at least notice of it) seems to have been given to the Council's Head of Property Services with a request for observations. A reply sent on his behalf to the Head of Planning Control on 20 September 1995 said that Property Services were not in a position to return the formal observation form because they were still investigating the Council's ownership of the ransom strip and were seeking legal advice. It seems that the Council made a site visit on 28 September 1995. One of the Council's officers compiled a case sheet recording the views of the various departments within the council. The Chief Valuer was recorded as indicating that consideration of the planning application should not be held up while "we sort out land ownership issues as this might take some time". The officer noted:
"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...
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