Doolan v Murray

JurisdictionIreland
JudgeKeane J.
Judgment Date21 December 1993
Neutral Citation1994 WJSC-HC 414
Docket NumberNo. 7753P/1990
CourtHigh Court
Date21 December 1993
DOOLAN v. MURRAY

BETWEEN

EILY DOOLAN
PLAINTIFF

AND

PETER MURRAY, ELAINE MURRAY, JOAN MURRAY-CHEEVERS, BAHGAT AZIZ AND DUN LAOGHAIRE CORPORATION
DEFENDANTS

1994 WJSC-HC 414

No. 7753P/1990

THE HIGH COURT

Synopsis:

NEGLIGENCE

Misrepresentation

Silence - Landowner - Rights - Misdescription - Easement - Right of way - Purchase of property subject to easement - Defendant entitled to right of way over property purchased - Defendant not being vendor of that property - Defendant's failure to reveal to purchaser other rights affecting way - Purchaser misled - Damages for negligent misstatement - (1990/7753 P - Keane J. - 21/12/93)

|Doolan v. Murray|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

CONVEYANCING ACT 1881 S31

FIRE SERVICES ACT 1981 S18(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(b)

FIRE SERVICES ACT 1981 S18(1)

FIRE SAFETY IN PLACES OF ASSEMBLY (EASE OF ESCAPE) REGS 1985 SI 249/85

FIRE SERVICES ACT 1981 S37

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/77 SCHED III PART I

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/77 ART 11(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

CAIRNDUFF V O'CONNELL 1986 IR 73

WYLIE, IRISH LAND LAW 2ED PARA 6.058

CANNON V VILLIERS (1878) 8 CH D 413

FLYNN & NEWMANS CONTRACT, IN RE 1948 IR 95

BOWSTEAD ON AGENCY 15ED 412

OSCAR CHESS LTD V WILLIAMS 1957 1 AER 325

COOPER V PHIBBS 1867 LR 2 HL 149

CLARKE CONTRACT LAW IN IRELAND 3ED 229

BENTLEY (DICK) PRODUCTIONS LTD V HAROLD SMITH (MOTORS) LTD 1965 1 WLR 623

SHANKLIN PIER LTD V DETEL PRODUCTS LTD 1951 2 KB 854

HEDLEY BYRNE & COMPANY LTD V HELLER & PARTNERS LTD 1964 AC 465

SECURITIES TRUST LTD V HUGH MOORE & ALEXANDER LTD 1964 IR 417

BANK OF IRELAND V SMITH 1966 IR 646

CANDLER V CRANE CHRISTMAS & COMPANY 1951 2 KB 164

DONOGHUE V STEVENSON 1932 AC 562

ROBINSON V NATIONAL BANK OF SCOTLAND 1916 SC 154

ESSO PETROLEUM COMPANY LTD V MARDEN 1976 2 AER 5

STAFFORD V MAHONY SMITH & PALMER 1980 ILRM 53

CHESHIRE FIFOOT & FURMSTON LAW OF CONTRACT 12ED 273

BANQUE FINANCIERE V WESTGATE INSURANCE CO 1989 2 AER 952

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

NOCTON V LORD ASHBURTON 1914 AC 932

1

JUDGMENT delivered the 21st day of December 1993 by Keane J.

2

The facts in this case are relatively simple, but they have given rise to an extraordinary range of legal problems, embracing the law of innocent, negligent and fraudulent misrepresentation, of agency, of conveyancing and implied covenants, of easements, of planning and environment law and the relation between all these diverse topics. It is, however, small consolation to the parties to know that a dispute which was relatively trivial in its origins and could have been resolved with some degree of flexibility and good sense by all concerned has led to an elaborate and illuminating discussion of so many different branches of the law.

3

The background to the case is as follows. In August 1985 the Plaintiff bought a mews in Dun Laoghaire from the 1st and 2nd named Defendants (whom I shall call "Mr. Murray" and "Mrs. Murray"). The Plaintiff's first marriage had recently broken down and she intended to share this mews with her small daughter and her second husband, Mr. Colm Henry, a photographer (whom I shall call "Mr. Henry"). The mews was located in Mariner's Lane at the rear of a three storey terraced house, No. 3 Haddington Terrace. The owner of that house (who is the third named Defendant and whom I shall call "Mrs. Murray-Cheevers") had given the site on which the mews was subsequently erected to Mr. Murray, who is her son.

4

Since 1974, a restaurant called "The Salty Dog" had been carrying on business in the basement of No. 3, Haddington Terrace. When Mrs. Murray-Cheevers gave the site for the mews to Mr. Murray, she reserved a right of way from the rear of No. 3 Haddington Terrace to Mariner's Lane in favour of herself and the then proprietor of the restaurant, Mr. Brian Rowan. Mr. Murray subsequently transferred his interest in the mews which he built on the site to himself and Mrs. Murray. The fourth named Defendant (whom I shall call "Mr. Aziz") subsequently acquired the interest of Mr. Rowan in the restaurant.

5

When the Plaintiff bought the mews from Mr. Murray and Mrs. Murray in 1985, she was aware of the right of way in favour of Mrs. Murray-Cheevers and Mr. Aziz. She was, however, concerned that it should not interfere with an alteration she intended to effect to the mews, which involved converting the area immediately adjoining the mews over which the right of way existed into a sort of lobby or hall by roofing it and providing a doorway from the lane into this hall. There was already a wooden structure in this area which contained a door frame and behind it another wooden partition containing a door frame separating the area from the remainder of the yard at the rear of No. 3 Haddington Terrace. The Plaintiff proposed to replace these latter structures with a door. The Plaintiff thus hoped to ensure that there would be no access by vehicles into this area, enabling her daughter to have access to it without any risk to her and also affording her (the Plaintiff) a greater degree of privacy. The Plaintiff, accordingly, before the contract for the purchase of the mews was signed, instructed the solicitor acting for her, Mr. Alan McGonagle, to take all the necessary steps to ensure that the existence of the right of way did not prevent her from carrying out this alteration to the premises, to which she attached considerable importance. Mr. McGonagle told Mr. Murphy, the solicitor acting for Mr. Murray and Mrs. Murray in the sale, of his client's desire to erect a doorway with lock and key at the Mariner's Lane end of the right of way and of her concern that the right of way reserved to Mrs. Murray-Cheevers and Mr. Rowan and Mr. Aziz should be a pedestrian one only. Mr. Murphy told Mr. McGonagle that, if required, Mrs. Murray-Cheevers and Mr. Aziz would enter into a deed with the Plaintiff making it clear that their right of way was a pedestrian right of way only and acknowledging the Plaintiff's right to erect a doorway with lock and key at the Mariner's Lane end, subject to the provision of keys to both doorways to Mrs. Murray-Cheevers and Mr. Aziz. A deed bearing date August 7th 1985 was executed by Mr. Murray and Mrs. Murray, Mrs. Murray-Cheevers, Mr. Aziz and the Plaintiff giving effect to that arrangement. On the same day, the sale of the mews to the Plaintiff was completed by the execution of a Deed of Conveyance by Mr. Murray and Mrs. Murray and the Plaintiff.

6

Unknown to the Plaintiff and her solicitor, Mr. McGonagle, the permission granted by the fifth named Defendants (whom I shall call the "the planning authority") to the predecessor of Mr. Aziz for a change of use to a restaurant of the basement portion of No. 3 Haddington Terrace granted under the Local Government (Planning and Development) Act 1963 on the 19th September 1974 contained a condition in the following terms:

"CONDITION

REASON

(1) The provision of three car parking spaces in rear garden with access of ( sic) existing laneway.

To provide for off street parking"

7

Unknown also to the Plaintiff and her solicitor, at the time Mrs. Murray-Cheevers applied for an outline permission for the erection of the mews, solicitors on behalf of the then proprietor of the restaurant objected to the development on the ground that

"It constitutes an interference with the fire exit from the restaurant."

8

Having bought the premises, the Plaintiff then proceeded to roof over the portion of the right of way in question, to erect a door with lock and key at the Mariner's Lane end of the right of way and to replace the existing wooden structure at the other end with a door with lock and key. She and Mr. Henry also covered in part of the yard at the rear of the mews and Mr. Henry also wished to use part of the mews premises for his business as a photographer. An application was, accordingly, made to the planning authority for permission for the retention of the structure in question and for the change of use. The planning authority treated the application as one for two permissions and decided to grant permission for the change of use, but refused permission for the retention. The reasons given for the refusal were that the development would endanger the safety of persons using the restaurant by obstructing a fire escape route, would contravene the car-parking condition in the restaurant permission and would contravene a condition in the permission for the mews itself. This decision was appealed to An Bord Pleanala who also refused permission on the same grounds, save that they omitted any reference to the restaurant permission. An enforcement notice was subsequently served on the Plaintiff requiring the removal of the works, with which she complied.

9

Relations had deteriorated between the Plaintiff and Mr. Henry on the one side and Mr. Murray, Mrs. Murray, Mrs. Murray-Cheevers and Mr. Aziz on the other side. Ultimately, the Plaintiff left the mews and is now living in Bray. In these proceedings, the Plaintiff claims:

10

(a) As against all the Defendants, a declaration that by virtue of the deeds dated the 7th day of August 1985 the right of way may be used only for pedestrian traffic and that the Plaintiff is entitled to erect a second gate across the end of the right of way subject to providing keys thereto for Mrs. Murray-Cheevers and Mr. Aziz;

11

(b) As against Mrs. Murray-Cheevers and Mr. Aziz, an injunction restraining them from using, or permitting the basement of No. 3 Haddington Terrace to be used, for the purpose of a restaurant business so long as it is incapable of complying with the conditions attached to the permission of 2nd July 1974 and with the requirements of the planning...

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