- Crabb v Arun District Council
Crabb v Arun DC Court Court of Appeal Citation(s)  EWCA Civ 7,  1 Ch 170 Transcript(s) Full Bailii transcript Keywords Proprietary estoppel, consideration
Crabb v Arun District Council  EWCA Civ 7 is a leading property and contract case concerning "proprietary estoppel". Lord Denning MR affirmed that where agreements concern the acquisition of rights over land, there is no need for both parties to provide a consideration for upholding the bargain. While promissory estoppel cannot found a cause of action it was held that in the peculiar situation of land, consideration is not necessary at all.
In 1965 Mr Victor Crabb bought two acres of land in the sea-side village of Pagham, near Bognor Regis. His neighbours on three and a half acres to the west were Arun District Council (formerly Chichester Rural District Council). The north part of Mr Crabb's land faced Hook Lane, and the West side was Mill Park Road, which also the east side of the council's land. There were two access points to Mill Park Road, which led up to Hook Lane, and out of the village, point "A" and point "B". The access point "A" was open by virtue of a formalised easement, granted when the previous owner of the whole five and a half acres had sold the property on to both. But access point "B" was only open because the council was letting Mr Crabb use it. In February 1968 the council put up gates at point "A" and "B". Believing that he had the assurance that he could use both gates, Mr Crabb sold off the northern half of his land, where access point "A" was. Thus, for the southern half of his land, he relied on having access point "B" open. In January 1969 he put a padlock on the inside of the gate there. This made the council angry. They responded by taking down the gate and putting in fences. Mr Crabb asked that it be opened again. The council said they would in return for £3000. Mr Crabb sued the council, alleging that he had been given an assurance that the gate would remain open.
The judge found that Mr Crabb had received no firm assurance, but more importantly, if there was, Mr Crabb had given no consideration in return for it, and it was not enforceable. Mr Crabb appealed.
Lord Denning MR held that the promise could be enforced, and that a right of access over the council's land be made way for. In his Lordship's view it may have been appropriate to pay some amount for the cost of the work to take down the fence, but in view of the fact that the land had been unusable for the last five or six years, Mr Crabb should have to pay nothing.
“ When Mr Millett, QC, for Mr Crabb said that he put his case on an estoppel, it shook me a little: because it is commonly supposed that estoppel is not itself a cause of action. But that is because there are estoppels and estoppels. Some do give rise to a cause of action. Some do not. In the species of estoppel called proprietary estoppel, it does give rise to a cause of action. We had occasion to consider it a month ago in Moorgate Mercantile v Twitchings  3 WLR 286 where I said that the effect of estoppel on the true owner may be that
"his own title to the property, be it land or goods, had been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct -what he has led the other to believe - even though he never intended it."
The new rights and interests, so created by estoppel, in or over land, will be protected by the Courts and in this way give rise to a cause of action. This was pointed out in Spencer, Bower and Turner on estoppel by Representation, Second Edition (1966) at pages 279 to 282.
The basis of this proprietary estoppel - as indeed of promissory estoppel - is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as "estoppel". They spoke of it as "raising an equity". If I may expand that, Lord Cairns said: "It is the first principle upon which all Courts of Equity proceed", that it will prevent a person from insisting on his strict legal rights - whether arising under a contract, or on his title deeds, or by statute - when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties, see Hughes v Metropolitan Railway (1877) 2 AC 448. What then are the dealings which will preclude him from insisting on his strict legal rights? -If he makes a binding contract that he will not insist on the strict legal position, a Court of Equity will hold him to his contract. Short of a binding contract, if he makes a promise that he will not insist upon his strict legal rights - then, even though that promise may be unenforceable in point of law for want of consideration or want of writing - then, if he makes the premise knowing or intending that the other will act upon it, and he does act upon it, then again a Court of Equity will not allow him to go back on that promise, see Central London Property Trust v High Trees House (1947) KB 130: Richards (Charles) v Oppenhaim (1950) KB 616, 623. Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights - knowing or intending that the other will act on that belief - and he does so act, that again will raise an equity in favour of the other: and it is for a Court of Equity to say in what way the equity may be satisfied. The cases show that this equity does not depend on agreement but on words or conduct. In Bamsden v Dyson (1866) LR 1 HL at page 170 Lord Kingsdown spoke of a verbal agreement "or what amounts to the same thing, an expectation, created or encouraged." In Birmingham & District Land Co v The London & North Western Railway (1888) 40 Ch D at page 277, Lord Justice Cotton said that
".... what passed did not make a new agreement but what took place .... raised an equity against him."
And it was the Privy Council who said that
".... the Court must look at the circumstances in each case to decide in what way the equity can be satisfied"
giving instances, see Plimmer v City of Wellington Corporation (1884) 9 AC 713-4.
Recent cases afford illustrations of the principle. In Inwards v Baker (1965) 2 QB 29, it was held that, despite the legal title being in the plaintiffs, the son had an equity to remain in the bungalow "as long as he desired to use it as his home." Mr. Justice Danckwerts said (at page 38):
"Equity protects him so that an injustice may not be perpetrated."
In EH Ives Investment Ltd v High (1967) 2 QB 379, it was held that Mr. High and his successors had an equity which could only be satisfied by allowing him to have a right of access over the yard, "so long as the block of flats has its foundations on his land." In Siew Soon Hah v Wang Tong Hong  AC 837, the Privy Council held that there was an "equity or equitable estoppel protecting the defendant in his occupation for 30 years". In Bank Negara Indonesia v Philip Foallm (1973) 2 Malaya Law Journal the Privy Council held that, despite the fact that he had no protection under the Rent Acts, he had an equity to remain "so long as he continued to practise his profession."
The question then is: were the circumstances here such as to raise an equity in favour of Mr. Crabb? True the Council on the deeds had the title to their land, free of any access at point B. But they led Mr. Crabb to believe that he had or would be granted a right of access at point B. At the meeting of 26th July, 1967, Mr. Alford and Mr. Crabb told the Council's representative that Mr. Crabb intended to split the two acres into two portions and wanted to have an access at point B for the back portion: and the Council's representative agreed that he should have this access. I do not think the Council can avoid responsibility by saying that their representative had no authority to agree this. They entrusted him with the task of setting out the line of the fence and the gates: and they must be answerable for his conduct in the course of it, see Attorney-General to the Prince of Wales v Collom (1916) 2 KB at page 207: Moorgate Mercantile v Twitchings (1973) 3 WLR at page 298 A-B.
The Judge found that there was "no definite assurance" by the Council's representative, and "no firm commitment", but only an "agreement in principle", meaning I suppose that, as Mr. Alford said, there were "some further processes" to be gone through before it would become binding. But if there were any such processes in the mind of the parties, the subsequent conduct of the Council was such as to dispense with them. The Council actually put up the gates at point B at considerable expense. That certainly led Mr Crabb to believe that they agreed that he should have the right of access through point B without more ado.
The Judge also said that, to establish this equity or estoppel, the Council must have known that Mr. Crabb was selling the front portion without reserving a right of access for the back portion. I do not think this was necessary. The Council knew that Mr. Crabb intended to sell the two portions separately and that he would need an access at point B as well as point A. Seeing that they knew of his intention - and they did nothing to disabuse him but rather confirmed it by erecting gates at point B - it was their conduct which led him to act as he did: and this raises an equity in his favour against them.
In the circumstances it seems to me inequitable that the Council should insist on their strict title as they did: and to take the highhanded action of pulling down the gates without a word of warning: and to demand of Mr. Crabb £3,000 as the price for the easement. If he had moved at once for an injunction in aid of his equity - to prevent them removing the gates - I think he should have been granted it. But he did not do so. He tried to negotiate terms, but these failing, the action has come for trial. And we have the question: In what way now should the equity be satisfied?
Here equity is displayed at its most flexible, see Snell's Equity, 27th edition, page 568, and the illustrations there given. If the matter had been finally settled in 1967, I should have thought that, although nothing was said at the meeting in July 1967, nevertheless it would be quite reasonable for the Council to ask Mr. Crabb to pay something for the access at point B, perhaps - and I am guessing - some hundreds of pounds. But, as Mr. Millett pointed out in the course of the argument, because of the Council's conduct, the back land has been landlocked. It has been sterile and rendered useless for five or six years: and Mr. Crabb has been unable to deal with it during that time. This loss to him can be taken into account. And at the present time, it seems to me that, in order to satisfy the equity, Mr. Crabb should have the right of access at point B free of charge without paying anything for it.
I would, therefore, hold that Mr Crabb, as the owner of the back portion, has a right of access at point B over the verge on on to Mill Park Road and a right of way along that road to Hook Lane without paying compensation. I would allow the appeal and declare that he has an easement, accordingly.
Estoppel casesDillwyn v Llwellyn (1862) 4 De GF&J 517Hughes v Metropolitan Railway Co  UKHL 1High Trees case  KB 130D & C Builders v Rees  EWCA Civ 3Ogilvy v Hope Davies  1 All ER 683Crabb v Arun DC  EWCA Civ 7Waltons Stores Ltd v Maher (1988) 164 CLR 387Jennings v Rice  EWCA Civ 159Collier v P&MJ Wright (Holdings) Ltd  EWCA Civ 1329Yeomans Row Management Ltd v Cobbe  UKHL 55 see Estoppel in English law
- English contract law
- English trusts law
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