IN THE SUPREME COURT OF JUDICATURE	CCRTF 1998/0687/2
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAERNARFON COUNTY COURT
(His Honour Judge Eifion Roberts QC)	Royal Courts of Justice
	Strand, London WC2

	Tuesday, 11th May 1999

	B e f o r e :

	LORD JUSTICE ALDOUS and
	LORD JUSTICE TUCKEY

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	(1)  EMLYN WILLIAM JONES
	(2)  VALERIE SIGNE JONES	Claimants/Appellants

	-v-

	BRIAN STONES	Defendant/Respondent

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	Computer Aided Transcript of the Palantype Notes of
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Mr R Hall (instructed by Messrs William George & Sons, Porthmadog, Gwynedd) appeared on behalf of the Appellant Claimants.

Mr N Thompson (instructed by Messrs Pinders, Derby) appeared on behalf of the Respondent Defendant.
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	J U D G M E N T
	(As Approved by the Court)

	Crown Copyright

	 	Tuesday, 11th May 1999

LORD JUSTICE ALDOUS:    This appeal is concerned with two issues arising out of a boundary dispute which came before His Honour Judge Eifion Roberts QC, sitting in the Caernarfon County Court.

The background facts 

Abersoch Manor in the county of Gwynedd consisted of the manor house and stables.  By 1979 the stables had been converted into a cottage and the Manor was run as a hotel by Mr and Mrs Ball.  By a conveyance dated 10th September 1979 Mr and Mrs Ball conveyed the cottage, known as Manor Cottage, to, in effect, Mr Brian Stones, who used it as a weekend and holiday cottage.  Attached to the 1979 conveyance was a plan stated to be for the purpose of identification only.  That plan was inaccurate, but it showed in general terms the boundary between the properties.   

If the property is approached from the highway to the west, the Manor lies to the north and the cottage to the south of the approach road and they are separated by an old stone wall along the north/south boundary.  At the south end of that wall there is a gateway defined by two pillars.  Thereafter the boundary proceeds east and then turns south.   

In about 1980 Mr and Mrs Ball added extensions to the hotel at the side where the boundary between the two properties met.  They also converted the hotel into a rest home.  In March 1987 Mr and Mrs Jones purchased the Manor.  

In 1989 Mr Stones made the cottage his permanent residence and from about that time disputes between him and Mr and Mrs Jones arose.  Each blamed the other for what happened.  Those disputes came to a head in February 1995, when Mr and Mrs Jones started these proceedings.

The claim

The particulars of claim alleged that Mr Stones had committed five acts of trespass.  First, it was alleged that he had placed a green oil tank on and across the old stone wall.  Second, it was alleged that he had placed and maintained flower pots on the wall.  Complaint was also made about a fence erected in 1993, a block wall closing an access to the Manor and a concrete platform and gas tank.  Mr and Mrs Jones claimed a declaration and a mandatory injunction requiring Mr Stones to move the two tanks, the concrete platform, the flower pots, the fence and the block wall.    

Mr Stones did not dispute any of the acts of alleged trespass.   He contended in his defence that he had not trespassed because the stone wall was a party wall and because the fence, the block wall, the concrete platform and the gas tank were all situated on his land.  Alternatively, he alleged that Mr and Mrs Jones were not entitled to the injunction claimed because of acquiescence or estoppel.    

The judge held that the old stone wall was not a party wall;  it belonged to Mr and Mr Jones.  He also held that the boundary was situated along the lines for which Mr and Mr Jones had contended.  It followed that Mr Stones had committed the alleged act of trespass.  The judge therefore made declarations delineating the boundary between the properties and ordered that the fence, the gas tank and the concrete platform be removed within two months.  There is no appeal against that part of the judge's order. 

The judge upheld the defence of acquiescence in relation to the oil tank and the flower pots, but rejected it in relation to the other acts of trespass.  He therefore excluded from the injunction preventing further trespass the retention and use of the oil tank and six flower pots.  Against that part of the judge's order and the order for costs that he made Mr and Mrs Jones appeal, and it is that appeal which comes before this court.    

The judgment

Having decided the two main issues in favour of Mr and Mrs Jones, the judge came to consider the individual acts of infringement.   At p.11 of the transcript of his judgment he said:      
	"I now turn to the specific allegations of trespass which are made by the plaintiffs, both in their original and in their amended Particulars of Claim in paragraph 3.  It is alleged in paragraph 3(1) that in 1990 the defendant placed a green diesel oil tank on the wall as shown on the master plan.  The defendant admits that he placed it there but in 1992, not in 1990.  It does not sit on the full width of the wall but on part of it only.  In paragraph 3(2) it is alleged that also in 1990 the defendant put flower pots on the wall, which still remain there.  The defendant, supported by Mrs Ball, says that the pots had been put there in the Balls' time and that at or shortly after the 1979 conveyance he obtained their permission to put flowers in them.  I remind myself that the Balls had grown what I saw as a tall Leylandii hedge on the manor side of the stone wall.

	No complaint, whether oral or written, was made by the plaintiffs about either the tank or the flower pots until they consulted solicitors, who first wrote about them ... on the 28th May 1993.  I accept that the tank and the pots with flowers have been there certainly from 1990, thus about three years had elapsed before any complaint was made.  Applying the principle enunciated by Oliver J in Taylors Fashions Limited v Liverpool Victoria Trustees Company Limited [1981] QB 133, it seems to me that after that sort of period had elapsed it would be unfair to allow the plaintiffs to deny that they knowingly or unknowingly permitted or encouraged the defendant to assume to his detriment that he was entitled to have those items on the wall.  That being so, I shall not grant any relief to the plaintiffs in respect of those two items, which can remain where they are."

He went on to consider the allegations of acquiescence in relation to the other acts of trespass.  He concluded that there was no acquiescence.  His reasons can be seen from a passage on p.13 of his judgment, where he said:     
	"There was no question of his having relied upon any assumption derived from or encouraged by the plaintiffs' standing by in any way.  The defendant in fact chose to erect this fence at a time when, as he must have known, the plaintiffs were away on holiday for two weeks, without having given them any warning whatever.  Even if they had been there and complained to him at the time I am sure he would not have heeded them but carried on in reliance of his own belief, as he did much later on in another context in November 1993 when, on any view, a boundary dispute was raging, as he well knew.  

	I am unable to find anything in the nature of estoppel or acquiescence in relation to the fence, which, in my judgment, is a clear trespass and will have to be moved back to allow a clear 3' unobstructed strip between the fence and the south wall of extension X."

There is little or no dispute as to the facts relating to the oil tank and the six flower pots.  It seems that the flower pots were originally owned by Mr and Mrs Ball and were placed on the wall at the time that they owned the property.  According to the evidence of Mr Ball, he and his wife gave them to Mr Stones when they sold the Manor.  Thereafter Mr Stones tended them, planting flowers when necessary.  No complaint was made by Mr and Mrs Jones until the letter before action of 20th May 1993, to which I will have to come.  The explanation for that given by Mr and Mrs Jones was that they did not see that the flower pots were objectionable at the time.  

The gas tank was placed on the wall in about November 1992, so that it extended about 20 millimetres over a notional line drawn down the middle of the wall.  No complaint was made at that time and nothing was said until the letter of 28th May.  That letter was written by solicitors acting for Mr and Mrs Jones.  The relevant parts are in these terms:  
	"We have been consulted by Mr and Mrs E W Jones of Abersoch Manor, Lon Sarn Bach, Abersoch, and are instructed to point out to you that the boundary wall between your premises and our Clients' premises upon which you have placed a tank covering the whole width of the wall, and flower pots, is in fact our Clients' property and forms part of Abersoch Manor.  In the circumstances we have been instructed to request you to remove the plant pots and any other items you have placed on the top of the wall including the large green tank which was installed during the winter.  Please comply with this request within the next 14 days, failing which our Client will take such steps in the matter as are appropriate including Court proceedings if so advised."   

The law

 
Mr Richard Hall, who appeared for Mr and Mrs Jones, submitted that it had not been established that Mr and Mrs Jones had encouraged Mr Stones to believe that he had the right to maintain the flower pots and the oil tank on the wall.  In any case, he submitted that at least three of the elements that were required by Willmott v Barber (1880) 15 Ch D 96 at 105 had not been made out.  

Whether or not the elements said to be required to establish the defence in the judgment of Fry J in Willmott v Barber are necessary was considered by Buckley LJ in Shaw v Applegate [1977] 1 WLR 970.  At p.978 he cited this extract from the judgment of Sir Raymond Evershed MR in Electrolux Ltd v Electrix Ltd (1954) 71 RPC 23:    
		"`I confess that I have found some difficulty - or should find some difficulty if it were necessary to make up my mind and express a view whether all five requisites which Fry J stated in Willmott v Barber 15 Ch D 96 must be present in every case in which it is said that the plaintiff will be deprived of his right to succeed in an action on the ground of acquiesence.  All cases (and this is a trite but useful observation to repeat) must be read in the light of the facts of the particular case.'"     

Buckley LJ continued:

	"So I do not, as at present advised, think it is clear that it is essential to find all the five tests set out by Fry J literally applicable and satisfied in any particular case.  The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the right sought to be enforced, to continue to seek to enforce it."     

As I have pointed out before in this court, the five elements referred to in Willmott v Barber can be important considerations, but the modern approach to acquiescence and estoppel is that laid down in Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265 at 1283.  In that case Oliver LJ considered a submission that all five probanda set out by Fry J in Willmott v Barber were necessary.   He rejected that submission.  Before doing so, he cited this extract from the judgment of Sir Barnes Peacock, which was cited with approval by Lord Blackburn in Erlanger v New Sombrero Phosphate Co (1878) 3 AC 1218 at 1279:   
		"`The doctrine of laches in courts of equity is not an arbitrary or a technical doctrine.  Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.  Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.'"

Lord Blackburn continued:

	"I have looked in vain for any authority which gives a more distinct and definite rule than this, and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.  The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty;  but that, I think, is inherent in the nature of the inquiry."    

Oliver LJ continued at p.1285 B:     

	"For myself, I believe that the law as it has developed over the past 20 years has now evolved a far broader approach to the problem than that suggested by Mr Aldous and one which is in no way dependent upon the historical accident of whether any particular right was first recognised by the common law or was invented by the Court of Chancery.  It is an approach exemplified in such cases as Inwards v Baker [1965] 2 QB 29 and Crabb v Arun District Council [1976] Ch 179.  We have been referred at length to a recent judgment of my own in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 2 WLR 576 in which I ventured to collect and review the authorities.  I there said, at p.593: 

		`Furthermore the most recent cases indicate, in my judgment, that the application of the Ramsden v Dyson, LR 1 HL 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the  circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.'    

	Whilst, having heard the judgment read by counsel, I could wish that it had been more succinct, that statement at least is one to which I adhere."    

Watkins LJ agreed with that judgment.  Stevenson LJ said: 

	"I agree and would like to express my concurrence with what Oliver LJ has said, both about archaic and arcane distinctions and in his statement in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 2 WLR 576 which he read from his judgment." 

I believe that the statement of Oliver LJ in the Habib Bank case  encapsulates the law.  The reference to other cases can help to show what acts can be relevant when deciding whether it would be unconscionable to allow a party to proceed upon a particular basis, but do not lay down principles which have to be met and applied in every case. 

The conclusion    
 
At the heart of estoppel or acquiescence lies an encouragement or allowance of a party to believe something to his detriment.  Thus the first question to determine is whether any action or inaction by Mr and Mrs Jones has encouraged Mr Stones to believe that he was entitled to place the oil tank on the wall in the position that he did and to keep the flower pots there.  Second, if there was such encouragement, then it is necessary to consider whether that caused detriment to Mr Stones.  Third, the court should decide whether in all the circumstances of the case it was unconscionable for Mr and Mrs Jones to assert their legal rights.  

I will deal first with the flower pots.  The judge made no finding as to whether Mr and Mrs Jones believed that the wall belonged to them before they consulted solicitors.  That was not surprising as there was no evidence given on the matter.  There was evidence that Mr and Mrs Jones knew of the flower pots and did not see them as objectionable.  The judge also did not decide at what time Mr Stones believed that the wall was a party wall, nor whether he was led to that belief by any action or inaction of Mr and Mrs Jones.  That is also not surprising as there was no evidence on the matter.  Mr Stones' evidence is contained in his witness statement in paragraph 10, where he said:     
	"With regard to the stone boundary wall no reference is made to its ownership in the Conveyance of the 10th September 1979.  It is approximately 18 inches wide and in my opinion should be treated as a party wall with each of us being responsible for maintenance of our side of the wall.  When Mr and Mrs Ball sold Manor Cottage to me they also included some stone plant pots and troughs which lay on top of the wall and in which I have continued to plant flowers.  These containers remain on the top of the wall.  It did not occur to me that when in 1992 I placed a small diesel tank lying partly on top of the wall and partly protruding onto my land (but not lying beyond the halfway point of the wall, that is to say over that part of the wall or land belonging to the Plaintiffs), that this would give cause for complaint by the Plaintiffs."    

Mr Hall submitted that the judge's conclusion was based upon mere delay and therefore he had misapplied the law.  Mr Thompson, on behalf of Mr Stones, submitted that the judge had had drawn to his attention the relevant law and had made findings of fact and that this court should not conclude that he had misapplied the law.  He had taken into account the facts and come to the correct conclusion.   

In my judgment the judge came to the wrong conclusion.  He concluded that the defence of acquiescence should succeed because of delay in complaint.  That, I believe, can be seen from the passage in the judgment that I have read relating to his finding that acquiescence had been established, when compared with the passage that I have read in which he rejected the defence of acquiescence in respect of the fence.  In the latter passage, to reject the defence, he relied upon Mr Stones' assumption as to his right so that he was not encouraged by Mr and Mrs Jones standing by in any way:  whereas he made no such finding in respect of the flower pots.  In my view the correct approach was to consider whether Mr Stones had established that he had relied on any action or inaction of Mr and Mrs Jones.  That he had not so established upon the evidence.   Further, Mr Stones did not establish that he had suffered any detriment by being allowed to maintain the flower pots on the wall owned by Mr and Mrs Jones.  In the circumstances none of the essential elements needed to establish a defence of acquiescence was made out.  Delay was not sufficient.   

As to the oil tank, the evidence did not establish when Mr and Mrs Jones became aware of the oil tank sitting on the wall.  I will assume that they saw it shortly after it was put on the wall and therefore they took no action for about six months.  Even so, there is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr Stones to believe that he could maintain the tank on the wall situated as it is.  As he stated in his witness statement, he believed it would not give cause for complaint by the plaintiffs.  Mr Stones did not establish the defence of acquiescence because he did not show that anything that Mr and Mrs Jones had done or not done had led or encouraged him to believe that he had the right to maintain the tank in the position on the wall where he had put it.  I am also doubtful whether in fact he suffered any detriment from anything Mr and Mrs Jones did or did not do.  He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.   

For those reasons I have come to the conclusion that the judge came to the wrong conclusion on the defences of acquiescence in relation to the oil tank and the flower pots and therefore this appeal should be allowed.   

LORD JUSTICE TUCKEY:   I agree.    
 
Order:	appeal allowed with costs, to be assessed if not agreed;  respondent to remove the oil tank and flower pots from the wall within 28 days from today;  the respondent's liability under the order for costs in this court being assessed at nil, order nisi made against the Legal Aid Fund pursuant to s.18 of the Legal Aid Act 1988;  judgment below relating to costs set aside and respondent to pay all the costs before the judge, to be assessed if not agreed;  interest on costs before the judge to run from 2.3.98;  legal aid taxation of the respondent's costs.