Is proprietary estoppel permitted for access to a lane?

In Ellis v. Eddy Holding Ltd., Allan J. found that proprietary estoppel had been made out by petitioners who had been encouraged by a developer to believe that they would be entitled to use a lane which provided access to their lots. In the result, she concluded that the petitioners had acquired "an equitable licence, revocable on reasonable notice, to use the Lane for access" and that "[a] remedy should be fashioned which permits continued access but minimizes the costs and inconvenience to the respondent." She invited counsel to make submissions but stated that the final order should incorporate certain features, including the reconfiguration of the lane. Upon such reconfiguration occurring, the petitioners were to be entitled to a registrable easement.

Pilcher v. Shoemaker (1997) 13 R.P.R. (3d) 42 (B.C.S.C.), also involved a dispute over an access road. Maczko J. ruled that when the plaintiffs had expended money on the road, a licence granted by contract to family members of the plaintiffs had "become irrevocable" and that it extended "to subsequent family members to whom the plaintiffs might transfer Blocks B and C without being paid. The irrevocable licence is personal to each of the families so that a sale of Block B could terminate the licence for that family but a sale of Block B would not terminate the licence for Block C." (para. 26.) Further, Maczko J. ordered that the irrevocable licence was binding on and enforceable against the defendants, who had had notice of the plaintiffs' interest before they had acquired their interest in the property. (para. 39.)

In Zelmer v. Victor Projects, supra, this court upheld a judgment which granted the plaintiffs an easement over a portion of the defendants' land, but did not discuss the alternative of a revocable or irrevocable licence. The form of easement had been agreed upon by counsel before trial.