Hoyl Group Ltd v Cromer Town Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice McFarlane,Lord Justice Longmore |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWCA Civ 782 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2 2014 3348 |
| Date | 23 July 2015 |
[2015] EWCA Civ 782
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT NORWICH
HHJ MOLONEY QC
Claim No 3SA00472
Royal Courts of Justice
Strand London, WC2A 2LL
Lord Justice Longmore
Lord Justice McFarlane
and
Lord Justice Floyd
Case No: B2 2014 3348
Sebastian Kokelaar (instructed by Birketts LLP) for the Appellant
Leslie Blohm QC and Catherine Collins (instructed by Douglas-Jones & Mercer) for the Respondent
Hearing date: 9 July 2015
This is an appeal from the judgment of HHJ Moloney QC sitting in the Norwich County Court, and his subsequent order dated 30 September 2014. The issue in the appeal is whether the claimant and respondent Hoyl Group Limited ("Hoyl") is entitled to a right of way over land owned by the appellant, Cromer Town Council ("Cromer"). The judge held that Hoyl was entitled to one such right of way, relying oh the equitable doctrine of proprietary estoppel, but rejected its case concerning another. Permission has been given to both sides to appeal by orders of Lewison LJ on 30 December 2014 and 25 February 2015.
North Lodge is a substantial 19 th century house in the middle of a public park on the seafront in Cromer, Norfolk. North Lodge was acquired by Cromer in 2006 from North Norfolk District Council ("NNDC") which still owns the surrounding park. The ground floor was used by Cromer for public purposes, such as council meetings and the registration of births, marriages and deaths. The upper floors were let as offices and the basement was used for various non-residential purposes.
At the time of Cromer's purchase of North Lodge in 2006, Hoyl agreed to take a 21 year lease of an upper floor (not the ground floor) as an office. Shortly afterwards the parties also agreed that Cromer would grant Hoyl a 99 year lease of the basement which Hoyl would then convert into a residential apartment. Hoyl intended to use the apartment as accommodation for visiting directors who did not live in Norfolk, but there was to be no restriction on a subsequent sale to an unconnected party.
I must next explain the layout of North Lodge and its surroundings. The seafront in Cromer faces north. North Lodge was built to face south, with its main public entrance, car park, and drive all on that side. On the north-facing or seaward side is a small walled garden, mostly laid to grass, which is open to the public, and which the public can access through a gate in the wall near the north east comer of the garden. There is a large flag pole in the middle of the garden, supported by guy ropes or stays.
At the date of the lease the basement rooms could be accessed by an internal door reached via an internal staircase from the hall of North Lodge. Its use would entail going in through the main public entrance on the ground floor. I will refer to this as "the internal access".
There were two other potential ways out of the basement The first was a fire exit at the eastern end of the north wall. This exit led to a small light well from which one could climb up into the walled garden and from there across the garden and out through the gate. I will refer to this, and access to and from the garden generally, as "garden access".
The second additional potential access route was through a shed at the eastern end of the front of the building. If "knocked through" the shed would be capable of providing a lobby and access via stairs or a ladder to the south-eastern part of the basement. I will refer to this as "car park access". One can reach the car park from Overstrand Road, up the drive which is at right angles to the front of the building.
Hoyl obtained planning permission from NNDC for the residential conversion of the basement flat in January 2007. In accordance with the terms of the proposed agreement with Cromer, Hoyl would also need to obtain a licence from Cromer as freeholder to carry out the proposed works. In early 2007 Hoyl's architects prepared a plan ("Plan A") with, for present purposes, the following important features:
i) Entry would be via the car park access. This would be achieved by converting the shed into a lobby and providing new stairs down to the basement through a new door. According to Plan A this entrance to the basement flat would be into a large open plan room with the kitchen to one's left and the living area to one's right
ii) To the north the existing garden access fire exit would be converted to what was described as a "replacement fire escape door", leading on to a basement level patio or terrace involving some digging out of the old light well, from which new steps would lead up to the walled public garden. The bedrooms were along the northern side.
iii) The internal access was to be blocked off with blocks or brickwork.
Plan A was discussed at a meeting of Cromer and Hoyl and by a letter of 16 March 2007 the town clerk, Ms Chance, informed Hoyl that the plans were agreed. It followed that the access routes which the parties were envisaging at that stage were those I have set out above: car park access was to be main entry, garden access was to be fire escape and the internal door was to be blocked off.
On 23 July 2007 the parties signed an agreement for a lease ("the agreement"). There are a few points to note about the agreement. Firstly, the agreement attached drafts of the lease and the licence for alterations, as well as Plan A (at this stage to show the extent of the demise). Secondly, the agreement referred to "Tenant's Plans". The licence for alterations to be granted to Hoyl was to incorporate the Tenant's Plans. By clause 8 of the agreement Hoyl was to provide the Tenant's Plans to Cromer within two weeks for approval. Thirdly, clause 4 of the scheduled licence obliged Hoyl to carry out the works, and to do so with "all due diligence and speed". In this sense the licence was more than purely permissive: it was to constitute an agreement for the work to be done in accordance with the Tenant's Plans when these were identified.
It was apparently envisaged that the lease and the licence for alterations would be executed together, but this did not occur. Instead the lease was granted on 24 August 2007. The only right of way granted by the lease is that provided by schedule 2 paragraph 1 of the lease, that is to say to the front, up the drive to the car park.
By October 2007 Hoyl had reconsidered its plans for conversion of the basement and decided to pursue a simpler and less expensive approach. The revised plan ("Plan B") reversed the internal arrangements. The open plan kitchen/living area was now along the northern side, and the two bedrooms were moved to the south. The entry arrangements were also reversed so that now:
i) The garden access would provide the main entry, described on the plan as "replacement front door".
ii) The car park access would now provide the emergency fire exit. This fire exit would be from a small bedroom via an enlarged escape window into a void from which one could climb up and exit through a new door into the former shed, and out into the car park through the external door. The doors were arranged with escape bars operable from the inside. As shown on the plan this was obviously not a satisfactory everyday means of access.
The parties discussed the changes introduced by Plan B at a meeting on 2 October 2007. Mrs Wreford on behalf of Hoyl explained the changes. Cromer had by this stage expressed some concern that the garden access would damage the lawn area in the communal garden. There was also concern about the need to move one of the stays for the flag pole, although the precise reasons for this are not clear. The minutes of the meeting record the following:
"Explained we would like to have access to the terraced area from a new gate situated in the low wall, which would maintain the grass to the communal area, a concern raised by the Town Council."
All those present at the 2 October meeting appreciated, at least at that stage that the proposed main entrance was now to be via the garden access. The reference to "a new gate situated in the low wall" was to deal with Cromer's concern about damage to the grass. This proposal would mean that someone leaving the flat from the patio area would go up a flight of steps and carry straight on over a short strip of scrub and out into the footpath to the east, and thus not cross the lawn at all. The impact on the garden would be trivial. Counsel for Cromer estimated the width of this strip as about two feet, but at all events it is a tiny piece of land. Although it needed to be approved at a formal council meeting, representatives of Cromer at the meeting indicated that the arrangement was likely to be acceptable. The minutes recorded that the revised plans would need to be shown to the Town Council Planning Committee,
So far as the internal access was concerned, it was agreed that as a temporary arrangement Hoyl could install a fire door instead of blocking it off permanently, so that staff staying in the flat could continue to access the offices conveniently, provided that the access was blocked off when the flat was sold. Again this was agreed in principle at the meeting, but needed approval at a council meeting.
After the meeting Mr Ramage, Hoyl's principal director, wrote an internal memo to Mrs Wreford commenting on the minutes of the October 2 meeting. He said that he did not believe Hoyl should pay for the new gate. As agreement for use of the internal access had been achieved, staff should enter and exit the flat through that access. It went on to say that for the majority of the time the internal access would be used by himself and his fellow director and that any damage to the lawn would be minimal. If...
To continue reading
Request your trial
-
Marussia Communications Ireland Ltd v Manor Grand Prix Racing Ltd and Others
...of the relevant factors — it may even be a determining factor in certain cases — in the overall inquiry." 87 More recently, in Hoyl Group Ltd v Cromer Town Council [2015] EWCA Civ 782, Floyd LJ affirmed these formulations of the 88 The defendant submits that applying this broad principle t......
-
(1) Stephen Charles Smyth-Tyrrell v William Robert Bowden
...at the whole course of conduct and taking it together there was no promise or assurance beyond what was agreed in 1993. Hoyl Group Ltd v Cromer Town Council 71 The claimants rely heavily on the decision of the Court of Appeal in Hoyl Group Ltd v Cromer Town Council [2015] EWCA Civ 782. Th......
-
A Ward Attachments Ltd v Fabcon Engineering Ltd
...and promise-based strands of promissory estoppel. A footnote to that paragraph notes that: “In Hoyl Group Ltd v Cromer Town Council [2015] EWCA Civ 782, Floyd LJ stated at [72] that: “A proprietary estoppel does not have to fit neatly into the pure acquiescence-based pigeon hole or the ass......
-
Table of Cases
.............................................................................................. 32 Hoyl Group Ltd v Cromer Town Council, [2015] EWCA Civ 782, [2015] HLR 43 ......................................................................................................... 155 Humboldt Flou......
-
Other Interests in Land
...7, [1976] Ch 179; Hill v Nova Scotia (Attorney General) , [1997] 1 SCR 69, 142 DLR (4th) 230; Hoyl Group Ltd v Cromer Town Council , [2015] EWCA Civ 782, [2015] HLR 43. THE LAW OF PROPERTY 156 but not contractual obligations. Landlords and tenants do not need privity of contract because the......
-
Passing of Benefit and Burden of Easements and Profits à Prendre to Successors in Title
...grant of a right of way over a service road limited to serving a single house on the property); Hoyl Group Ltd v Cromer Town Council [2015] EWCA Civ 782 (where a company was entitled to a right of way on the basis of proprietary estoppel); other examples of equitable easements include White......