Lester and Another v Woodgate and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Patten,Lord Justice Jacob,Lord Justice Sedley |
| Judgment Date | 09 March 2010 |
| Neutral Citation | [2009] EWCA Civ 1067,[2010] EWCA Civ 199 |
| Docket Number | Case No: B2/2009/1244 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 March 2010 |
[2009] EWCA Civ 1067
Before: Lord Justice Aikens
Case No: B2/2009/1244
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BODMIN COUNTY COURT
(MR RECORDER MARTINEAU)
Mr R Sheridan (instructed by Nigel Pullen Solicitors) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Lord Justice Aikens:
This is a renewed application for permission to appeal following a refusal on paper by Carnwarth LJ. The applicants seek permission to appeal from an order of Mr Recorder Martineau dated 19 May 2009.
The case concerns a right-of-way over land which is just above the Cornish town of Looe. (There was another issue in the case concerning boundaries, which is not the subject of any appeal application). The applicants are the owners of the dominant tenement. The respondents are the owners of the servient tenement. The right-of-way is at the northwestern edge of the servient tenement and it provides access to a road known Shutta Road or Shutta Lane. The judge heard evidence from many witnesses and gave a reserved judgment which is detailed and very clear, although it would have been more helpful if he had used numbered paragraphs or numbered the pages in his judgment.
The judge concluded that an easement was created by a grant in 1980. That grant has since been lost. As the judge says, this is therefore literally a case of “lost modern grant”. The judge found that the nature of the grant was for the use of a pathway by a step-ramp between the ground at the foot of the servient tenement's western retaining wall and a gate at the western corner of the dominant tenement, to be used by people on foot and for pushing wheelbarrows. The judge found that a predecessor in title to the applicants, Mr Chitty, was aware (during the 1990s) that there were changes to the retaining wall and the enlargement of a parking space on the servient land which interfered with the enjoyment of this easement. The judge found that Mr Chitty did nothing to protest or challenge the works apart from protesting to the then owner of the servient tenement about dumping material on Mr Chitty's land.
On the basis of these findings of fact, the judge concluded that the respondents had interfered with the easement that had been created by the grant of 1980 in favour of the dominant tenement. He held that the respondents were therefore liable in nuisance. However, he concluded that the respondents were “protected” from having any equitable remedies granted against them by virtue of an estoppel. The judge held that Mr Chitty himself would have been estopped from seeking any equitable relief concerning interference with the easement from the respondents' predecessors of the title. The judge then continued at the third paragraph on the page, which starts with the heading “Interference and defences to it”:
“I am also satisfied, having had no authority cited to me either way on the point, that the dominant tenant's slate is not wiped clean of that bar just because Mr Chitty has sold West view. It would be absurd if a person who had disqualified himself from seeking an equitable remedy were able to revive the claim to it by selling to another. Not for nothing is it said that estoppel binds parties and their privies, who include their successors in title, the claimants. Mr Sheridan accepted in the course of his submissions that if the benefit of such a defence could avail against a successor claimant, it must be open to me to find that his clients were debarred from equitable relief by Mr Chitty's inaction. I do so find.”
For the purposes of this application, I accept the argument of Mr Sheridan that there is a reasonable prospect of persuading the court of appeal that this conclusion of the judge is erroneous as a matter of law. The judge did not identify the particular type of estoppel which would prevent the applicants from being able to claim the benefit of any equitable remedies. It is at least arguable that the facts do not fit the classic definition of proprietary estoppel as given by Oliver J, as he then was, in Taylor Fashions Ltd v Liverpool Victoria Trustee Co Ltd [1982] QB 133 note. Also, the judge had found that the applicants had bought the dominant tenement at auction and were given particulars mentioning the easement, but stating that it was disputed. That fact may be of relevance in relation to any issue concerning estoppel.
I further accept the argument of Mr Sheridan that it is reasonably arguable that the equitable defences of “laches” or “acquiescence” is not open to the respondents, on the basis that those defences are, in Viscount Radcliffe's words, “personal disqualifications”: see Nwakobi v Nzekwu [1964] 1 WLR 1019, a Privy Council decision.
Whether, even if the applicants succeed on those matters, any kind of mandatory or prohibitory judgment should be granted, is another matter. This morning Mr Sheridan raised arguments to demonstrate why an injunction would be granted, but that will be a matter for the court.
The judge's conclusion on the amount of damages to which the applicants were entitled for past nuisance was, it seems to me, coloured by his view on the estoppel defence. I therefore grant permission to appeal in respect of the issue of damages. It follows that there should also be permission to appeal on costs.
I order that this appeal should be listed for half a day including judgment, before three Lords Justices, and there should be one Lord Justice who has Chancery experience. Costs of today will be costs in the appeal.
Order: Application granted.
[2010] EWCA Civ 199
Mr Recorder Martineau
Before: Lord Justice Sedley
Lord Justice Jacob
and
Lord Justice Patten
Case No: B2/2009/1244
8BJ00052
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
Mr Robert Sheridan (instructed by Goldbergs) for the Appellant
Mr Peter Langlois (instructed by Lyons Davidson) for the Respondent
Hearing date : 18 th February 2010
Lord Justice Patten :
This appeal concerns a disagreement between neighbours about a few yards of pedestrian access which, as is far too often the case, has escalated into bitter and costly litigation. The facts have been found with great care and are set out in detail in the reserved judgment of Mr Recorder Martineau, delivered in the Truro County Court on 19 May 2009. I will summarise those which are most relevant to what we now have to decide.
The claimants bought a plot of land at Looe in Cornwall from a company called Sherwell Developments Limited (“Sherwell”) at auction in April 2004. It was sold with the benefit of outline planning permission for development. The auction particulars mentioned the existence of an easement in favour of the property but stated that it was disputed. The claimants then constructed a house on the site which is called West View. For convenience, the references in this judgment to West View include the land in its undeveloped state.
The easement, as the Recorder found, was a right of way on foot and with wheelbarrows along a path running over the neighbouring property, Copplestone, which the defendants had bought in 2000 from a Mr Mees. It had been created by deed in 1980 by a Mr Holden in place of a right of way granted by a conveyance of 20 th September 1963 when the land now comprising West View (which was then part of the garden of a larger property) was sold by the Jeffery family to a Mr Cyril Stevens.
West View and Copplestone occupy the land between Shutta Road and Elm Tree Road which run parallel to each other above the harbour at Looe. Because the land slopes steeply up from the harbour side, Shutta Road is cut into the side of the hill and the gardens of the two properties lie some eight to ten feet above the level of the road and are each supported by a retaining wall.
The 1963 right of way was granted over a strip of land which measured about 50 feet in length and about 10 feet in width and lay between the boundary with Shutta Road and what was then the western boundary of Copplestone which was in separate ownership. It occupied the space between the retaining wall supporting Copplestone's garden and the public highway. The retaining wall for what is now West View directly abuts Shutta Road. The evidence at the trial was that in 1963 the right of way was granted from the south-west corner of West View (where there was a gate) along an established path over the strip of land which enabled the owners of West View to get access to Shutta Road. Witnesses described the strip of land as a grassy slope with a path leading down to the road. From West View use of the path would cut about ten minutes off the walk into Looe.
In 1974 Mr Holden excavated the strip of land (thereby removing the path down from West View) in order to construct a garage and a parking space on the site. Mr Stevens, who still owned the property which is now West View, commenced proceedings against him in the Truro County Court seeking an injunction compelling reinstatement of the right of way. The...
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