Watt v Dignan & Ors, Court of Appeal - Civil Division, October 05, 2017, [2017] EWCA Civ 1390

Issuing Organization:Civil Division
Actores:Watt v Dignan & Ors
Resolution Date:October 05, 2017
 
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Case No: A3/2015/1251

Neutral Citation Number: [2017] EWCA Civ 1390

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT MANCHESTER

(CHANCERY BUSINESS)

Mr Recorder Khan

3MA30612

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 5 October 2017

Before :

LADY JUSTICE GLOSTER Vice President of the Court of Appeal, Civil Division

and

LORD JUSTICE LEWISON

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Between :

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MR PEPIN ASLETT & MR DANIEL METCALFE (instructed by Kuit Steinart Levy LLP) for the Appellant

MS SUZANNE RIVERS MANSFIELD & MR ASA JACK TOLSON (instructed by Chafes Hague Lambert) for the Respondents

Hearing date : 18 July 2017

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JudgmentLord Justice Lewison:

  1. The main issue on this appeal is whether the Dignans have enforceable rights to use the toilet facilities at Unit 27 on the Bingswood Industrial Estate outside Whaley Bridge in Derbyshire. Unit 27 is owned by Mr Watt. It is common ground that such rights, in the nature of easements, were granted to their predecessors in title as owners of Units 26A and 29 by two conveyances respectively dated 27 September 1985 and 16 April 1987. The question is whether they are now estopped from asserting those rights. Mr Recorder Khan held that they were not.

  2. The purchaser under the two conveyances granting the rights was a Mr Pearson. On 28 February 1989 Mr Pearson conveyed Unit 26A to a Mr and Mrs Tomlin; and on 7 April 1989 he conveyed unit 29 to the same Mr and Mrs Tomlin. The Dignans acquired the two units from Mr and Mrs Tomlin on 20 June 2011. Mr Watt acquired Unit 27 on 29 February 2012 from Tasco LLP. The Recorder found that Mr Watt acquired unit 27 with a view to demolishing it.

  3. The toilets had been decommissioned in about 2005, before the Dignans' acquisition of the units, although the urinals remained in situ. The occupiers of Units 26A and 29 did not use them after that, although the toilet block remained standing. Mr Watt demolished the toilet block in September 2012.

  4. Mr Watt argued before the Recorder that the easements had been abandoned by the time of the demolition. The Recorder rejected that argument and there is no appeal against that. It was also argued that the Dignans were estopped, at least by September 2012, from asserting their easements with the consequence that Mr Watt had been entitled to demolish the toilet block. The Recorder rejected that argument too. Although he declined to order reinstatement of the toilet block, he ordered Mr Watt to pay damages in lieu. With the permission of Beatson LJ Mr Watt appeals on the latter two points.

  5. In advancing his case on estoppel Mr Aslett relied on the statement of principle by Patten LJ in Lester v Woodgate [2010] EWCA Civ 199; [2010] 2 P & CR 21. In that case a company called Sherwell was entitled to a right of way over land belonging to Mr Mees. Mr Mees carried out work to the route over which the right of way ran which made it unusable. The work that he carried out amounted to an actionable nuisance. Sherwell made no complaint. The lack of objection by Sherwell made it possible for Mr Mees to sell his land to Mr and Mrs Woodgate without having to give notice of any dispute about the right of way. Sherwell then sold its land to Mr and Mrs Lester. This court, upholding the trial judge, held that Mr and Mrs Lester were estopped from asserting the right of way. Patten LJ noted at [23] that the pleaded case was that by failing to take any steps to prevent the creation of an actionable nuisance by Mr Mees, Sherwell became estopped as against Mr Mees and his successors in title from enforcing the right of way.

  6. At [40] he said:

    ``If the claimant's conduct at the time takes the form of encouraging the defendant to believe that his otherwise tortious interference with the claimant's property will be waived and not objected to and, in reliance on that, the defendant subsequently acts in a way which can be characterised as detrimental then the position is, I think, different from the facts considered in Ramsden v Dyson and the court does then have to decide whether the causative effect of that conduct is sufficient to bar the enforcement of the legal right.''

  7. He pointed out that the trial judge had held that the estoppel was made out because Mr Mees had relied on Sherwell's acquiescence by selling to Mr and Mrs Woodgate. At [44] Patten LJ rejected the submission that Sherwell's acquiescence had not been relied on by Mr Mees. Mr Mees was entitled to rely on that acquiescence in formulating his replies to enquiries before contract. What is important is that the case was decided on the basis of reliance by the person to whom the representations were made and who was the property owner at the time of the reliance. There is no mention in the judgment of any reliance by Mr and Mrs Woodgate.

  8. It is, I think, important at this point to record the way in which the estoppel was pleaded at trial. Paragraph 13 of the Amended Defence put it as follows:

    ``Further or in the alternative, it is averred that the Claimants are estopped from relying upon the Right to WC Facilities.

    PARTICULARS OF ESTOPPEL

    (i) The WC Facilities were removed by 2005 at the latest;

    (ii) The Claimants did not make any request for the reinstatement of the WC Facilities...

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