The doctrine of estoppel as developed by the common law was so narrow in scope that equity intervened to extend it. Equitable estoppels is formidable weapon in the hands of a defendant who seek to protect rights acquired as a result of the expectation held out by the plantiff.
However, estoppels was originally applicable where there is an unambiguous representation of existing facts intended to be acted upon and in fact acted upon by the person to whom it is made to his detriment. See Jorden v. Money (1854) 5 H.L. 185.
Proprietory estoppel and promissory estoppel being of the same genus are similar in many respects, though they differ in that the effect of promissory estoppel may be suspensory, while that of proprietory estoppel is permanent.
Moreover, promissory estoppels can only be used as a shield and not as a sword, while proprietory estoppel can be used as both. It must be noted that proprietory estoppel is capable of conferring a right of action as well as substantive equitable right of property.
Establishing a claim by way of proprietory estoppel
A claim by way of proprietory estoppel is not in itself a remedy. However, where a claimant can demonstrate an entitlement by way of estoppel, an appropriate remedy will be awarded. The estoppel is therefore best seen as a species of cause of action which demands an appropriate remedial response. Whilst the general doctrine of estoppel is only capable of acting as a shield to protect against a person asserting his rights, proprietary estoppel ‘may be relied on as a sword, not merely as a shield.’
There are therefore two essential stages to the process of claiming a remedy by way of proprietory estoppel, namely establishing an estoppel ‘equity’ and satisfying that equity through an appropriate remedy.
Establishing an ‘equity’
A Claimant must first demonstrate circumstances which entitle him to demand a remedy.
In other words, a claimant must show that the cause of action, namely a proprietory estoppel, has been raised. Modern cases have stated that three factors are required to establish a proprietary estoppel: (1) an assurance; (2) a reliance; and (3) change of position or detriment. An estoppel ‘equity’ will only arise if these three elements are proved.
Satisfying the ‘equity’
Once an estoppel ‘equity’ has been established, the claimant is prima facie entitled to remedial relief. However, the mere existence of an ‘equity’ does not predetermine the appropriate remedial response. Rather, the court must decide what specific remedy would be appropriate in the circumstances to ‘satisfy’ the equity raised by the estoppel. The court enjoys the discretion to select from a range of possible remedies.
Scope of proprietory estoppel
The principles of proprietory estoppel have been held to operate so as to create rights and interests in land, and possibly other types of property. However, it has been suggested that they do not apply in the context of public la matters, such as the grant of planning permission.
In Western Fish Products Ltd v Penwith District Council, Megaw LJ said:
‘we know of no case, and none has been cited to us, in which the principle set out in Ramsden v Dysonand Crabb v Arun District Council has been applied otherwise than to rights and interests created in or over land. It may extend to other forms of property. In our judgment there is not good reason for extending the principle further. As Harman J pointed out in Campbell Discount Co Ltd v Bridge, the system of equity has become a very precise one. The creation of new rights and remedies is a matter for Parliament, not the judges.’
Although Megaw LJ considered that the doctrine of proprietory estoppel had no application in a public law context, the developing doctrine of legitimate expectation in public law does, however, provide a close analogy with proprietory estoppel.
WRITTEN BY: AKINOLA MICHAEL .A
