Separate rules governing

If such seemingly sensible conclusions can be drawn now, why was there so much confusion only two decades ago? Obviously the above suggestions are still not affirmative, or by any means clear enough, but the academics now seem to be a lot more comfortable with the idea of licences and proprietary estoppel. In the 1980's however, the vigorous debate led to a "confused and difficult" state of the law31 and the need for rationalisation32. Dewar believed the confusion to be as a result of the development of the law, and argued that principles have been obscured as the courts have tried to reduce its complexity for their own benefit.

His claim that the courts were concerned more with 'conceptual formalism', rather than practical consequences, appears to illustrate precisely the reason for this confusion. This, he writes, is "a refusal to regard anything other than conceptual arguments"33. It is submitted that this was one of the main reasons for the problems in the development of the law at that time. The policy areas of the argument appear to have been set-aside in this desire for orthodox legal principles.

However policy and moral issues play an important role in most of these cases, partly because the cases are usually concerned with family, or at least quasi-family, situations. In the late 1970s, Lord Denning confirmed that the courts do need to impose their own view of the parties' needs, rather than find themselves bound by their own formal concepts34. By this time, phrases and words with moral connotations started to appear in court dicta, such as the legal consequences of "family arrangements"35 and the use of "reason and justice" in the decision of remedies.

Obviously some degree of concept must be applied by the courts, but clearly not to the level that they appeared to have previously been so concerned about. Briggs has argued that licences could be accommodated within "basic" concepts36, while Moriarty criticised this approach37, and Everton submitted the need for a new concept of "quasi-property"38. Criticising Everton's approach as "fanciful", Moriarty suggests that licences are "no more than orthodox property rights, simply denuded of formality in their creation"39.

He also argues, however, that rules of formality are distinguishable from rules of substance (rightly criticised by Dewar as 'logically impossible'40), and that licences serve only to subvert the former and not the latter (again, licences must be explained as a subversion of both procedure and substance41). So do contractual licences therefore form a distinct and unique category of rights over land, completely separate from estoppel rights? There is of course no simple answer.

There is still constant conflict between formality, a general requirement in the creation of proprietary rights since the Statute of Frauds 167742, and the ever-emerging issues of morality and policy. It is submitted that contractual licences, because of their nature, do indeed form a distinct category of rights, not binding on third parties, and that estoppel licences are an equitable solution in situations where it would be 'unfair' to defeat expectaions. The two types need to be considered as separate rights, with separate rules governing them. This 'dual approach' appears to be prefered after the decision in Dugdale43.

Contractual licences, especially in the 'family' context serve the specific purpose of protecting the occupation of the land, and must be seen of as personal and non-assignable. Estoppel rights, on the other hand, may be binding on third parties if that was what was reasonably expected and relied upon44. It is, in many respects, the simple divide between law and equity. The law of contract is simply the exchange of promises, whereas estoppel requires this equitable concept of reliance on an expectation, whether express or implied. The law relating to estoppel rights is by no means certain.

As suggested by Battersby45, proprietary estoppel need further intervention by the courts for the 'ultimate proprietary interest' to be crystallised and properly defined. The courts are likely to decide in favour of estoppel licences as proprietary interests in land, but it is submitted that they must then chose from the range of interests already availiable, rather than invent another new category of interests. It is also suggested that estoppel licences should only be made proprietary interests by the courts if they deem it desirable or necessary, thus maintaining the equitable aspect of estoppel.

As suggested above, however, we must not expect that contractual licences will then follow the same pattern. It is far more likely that contractual licenses will remain personal and non-assignable, as the common law has already laid its foundations in this area, and made the principle perfectly clear.

1 Duke of Beaufort v. Patrick [1853] 17 Beav 60 2 A. Briggs 'Licences: Back to basics' [1981] Conv. 212; M. P. Thompson 'Licences: Questioning the Basics' [1983] Conv. 50; A. Briggs 'Contractual Licenses: A Reply' [1983] Conv. 285; A. Everton 'Towards a concept of "Quasi-property"' [1982] Conv.118;

S. Moriarty 'Licences and Land Law: Legal Principles and Public Policies' [1984] 100 LQR 376 3 Hill v. Tupper [1863] 2 H&C 121; Clore v. Theatrical Properties Ltd [1936] 3 All ER 383; National Provincial Bank v. Ainsworth [1965] AC 1175 4 or indeed using the land in a particular way 5 Hurst v. Picture Theatre [1915] 1KB 1 6 Re Hampstead Garden Suburb Institute [1995] The Times, April 13th 7 See ER Ives Investment Ltd v. High [1967] 2 QB 379, and for an Australian example: Hamilton v. Geraghty [1901] 1 SRNSW Eq 81 8 Taylors Fashions Ltd v. Liverpool Victoria Trustees Co Ltd [1979]