Factual and Procedural Background
This opinion concerns a reserved judgment following the trial of a Part 8 claim regarding the extinguishment of a right of way over residential properties located in The City, Hampshire. The Claimants, Mr and Mrs Pezaro, sought a determination that the right of way in favour of the residential property Number 147 New Street was extinguished between 2005 and 2006 due to the actions of the Defendants' predecessor in title, Mr Ayres, on the basis of proprietary estoppel.
The properties at issue are Numbers 147, 149, and 151 New Street, forming a terrace with access via Cemetery Lane. Number 147 was conveyed in 1960 with a right of way over Numbers 149 and 151. The Claimants own Numbers 149 and 151, while the Defendants own Number 147.
Mrs Pezaro purchased Number 151 in 2001 and Mr Pezaro purchased Number 149 in 2004. Planning applications were made between 2005 and 2006 to develop the rear gardens of the three properties, which were sold to a development company in 2006. The Claimants later moved abroad and rented out the properties.
In 2010 and 2011, the Claimants applied for planning permission to build on the land adjacent to Number 151 but discovered the right of way remained registered. They sought agreement from Mr Ayres and later the Defendants to remove the right of way from the titles, offering to pay legal costs, but no agreement was reached.
The Defendants purchased Number 147 in 2011, having received notice of the right of way on the title but without knowledge of the Claimants' informal agreement with Mr Ayres or the second planning application. The Claimants rely on proprietary estoppel to assert that the right of way was extinguished.
Legal Issues Presented
- Whether the right of way in favour of Number 147 over Numbers 149 and 151 was extinguished between 2005 and 2006 by proprietary estoppel arising from the actions of the Defendants' predecessor in title.
- Whether the Claimants were in actual occupation of the right of way so as to bind successors in title under section 116 of the Land Registration Act 2002 and paragraph 2 of Schedule 3.
- Whether the Claimants' informal agreement with the predecessor in title to remove the right of way is binding on the Defendants as successors in title.
- The application and effect of sections 29 and 116 of the Land Registration Act 2002 regarding priorities and binding interests in registered land.
- Whether the court should order alteration or rectification of the land register to remove the right of way.
Arguments of the Parties
Claimants' Arguments
- The right of way was extinguished by proprietary estoppel due to the predecessor's actions and the Claimants' detrimental reliance, referencing Lester v Woodgate [2010] EWCA Civ 199.
- The Claimants were in actual occupation of the right of way despite living abroad, controlling the area via their agent, and obstructing the right of way with fencing and gates.
- The presence of planning applications and site notices evidences their intention to build over the right of way and supports actual occupation.
- The informal agreement with Mr Ayres to remove the right of way, with an offer to pay legal costs, should bind successors in title.
- The Claimants relied on section 116 of the Land Registration Act 2002 to argue their equity by estoppel binds successors in title.
Defendants' Arguments
- No proprietary estoppel arose because there was no representation or assurance made about the right of way during the relevant period.
- The Claimants were not in actual occupation of the right of way; obstruction does not equate to occupation, especially when the right of way had not been built over or permanently altered.
- The Defendants purchased Number 147 for valuable consideration with notice of the registered right of way and without actual knowledge of any informal agreement or the second planning application.
- The Claimants’ informal agreement with Mr Ayres is not binding on the Defendants as successors in title due to lack of notice and registration.
- The Claimants failed to take timely steps to remove the right of way from the register, undermining their claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lester v Woodgate [2010] EWCA Civ 199 |
Proprietary estoppel can bar enforcement of legal rights including easements where it is unconscionable for the owner to assert them. |
Guided the court’s analysis on whether proprietary estoppel extinguished the right of way; court found no binding estoppel on successors in title. |
| Thorner v Major [2009] UKHL 18 |
Proprietary estoppel arises from representation by words or conduct reasonably relied upon. |
Supported the legal framework for assessing whether assurances about property rights were made and relied upon. |
| Jackson v Cator (1800) 5 Ves. 688 |
Equity can restrain enforcement of reserved easements after encouragement to improve land. |
Referenced in explaining the scope of proprietary estoppel and equitable interests. |
| Abbey National Building Society v Cann [1990] UKHL 3 |
Occupation is a question of fact and varies with the nature of the property. |
Informed the court’s cautious approach to finding actual occupation of an easement over servient land. |
| Chaudhary v Yavuz [2011] EWCA Civ 1314 |
Enjoyment of an equitable easement does not necessarily amount to actual occupation of the land. |
Supported the court’s view that use of an easement differs from occupation for the purposes of binding interests. |
Court's Reasoning and Analysis
The court began by examining the factual matrix surrounding the right of way established in 1960 and the subsequent sales and planning applications affecting the rear gardens of the properties.
It found that although the Claimants and Mr Ayres had an informal understanding that the right of way would be removed, there was no formal agreement or registered notice to bind successors in title. The right of way remained registered on the title to Number 147.
The court analysed the doctrine of proprietary estoppel as explained in Lester v Woodgate and related authorities, noting that estoppel requires a clear assurance or representation and reasonable reliance to the claimant’s detriment.
It concluded that no estoppel by representation arose during the sale of the rear gardens because the right of way was not discussed, and the Claimants did not detrimentally rely on any assurance at that time.
The court considered whether the Claimants were in actual occupation of the right of way so as to bind successors under section 116 and paragraph 2 of Schedule 3 of the Land Registration Act 2002. It held that obstruction of the right of way by fencing and gates, controlled by the Claimants’ agent, did not amount to actual occupation, especially as the Claimants were living abroad and the right of way was not permanently built over.
The Defendants had no actual knowledge of the informal agreement or the second planning application at the time of purchase, and the Claimants’ occupation of the right of way was not obvious on a reasonably careful inspection.
The court found that the Claimants’ informal agreement with Mr Ayres was not binding on the Defendants as successors in title because it was unregistered and unimplemented before the registered disposition of Number 147.
Finally, the court addressed whether it should order alteration of the register to remove the right of way, concluding that no mistake existed in the register and that the right of way was properly registered. The Claimants’ delay in taking steps to remove the right of way exposed them to the risk that their agreement would not be enforceable against successors.
Holding and Implications
The court DISMISSED the Claimants' claim that the right of way was extinguished by proprietary estoppel or that it should be removed from the register.
The right of way remains registered and enforceable in favour of Number 147 over Numbers 149 and 151 unless and until the parties reach a formal agreement to remove it. The Claimants’ informal and unimplemented agreement with the predecessor in title does not bind the Defendants as successors in title.
No new legal precedent was established. The decision underscores the importance of registering interests and formalising agreements affecting registered land and highlights the limitations of proprietary estoppel in altering registered rights without clear notice or occupation.