Council Charge for Use of Private Road Outlawed

Posted: 30th October 2012

A local authority has suffered defeat in a dispute with a property developer after it tried to charge him £5,000-a-year to use a private road which provides access to the rear of his property. The Court of Appeal ruled that it would be ‘unconscionable’ for Epsom and Ewell Borough Council to charge Martin Joyce for the right to use the road adjoining his bungalow in order to gain access to a garage.

However, the court's decision that Mr Joyce’s right of way over the road is restricted to the sole purpose of serving the single house that currently stands on his land could result in his development plans for the site being stymied.

Lord Justice Davis, sitting with the Master of the Rolls, Lord Dyson, and Lord Justice Treacy, ruled that the council was bound by an ‘understanding’ it reached with a previous owner of the bungalow in 1992, prior to planning permission being granted for a Sainsbury's supermarket nearby.

Although the road is owned by the local authority and has never been dedicated for public use, the bungalow's former owner had, with the council's ‘encouragement’, used it to access the rear of his home, paving it and putting in double gates to his garage. That ‘mutually intended’ use of the road was part of an ‘overall deal’ done between the home owner and the local authority at the time, said the judge, who ruled that it would be wrong for the council to now renege on that agreement and charge Mr Joyce for the exercise of his right of way.

Joyce v Epsom and Ewell Borough Council. Case Number: B2/2012/0212