Dwyer Nolan Developments Ltd v Kingscroft Developments Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 05 April 2001
• Neutral Citation: [1998] IEHC 125
• Court: High Court
• Date: 05 April 2001

[1998] IEHC 125

THE HIGH COURT

No. 12470p/1997

DWYER NOLAN DEVELOPMENTS LTD. v. KINGSCROFT DEVELOPMENTS LTD.

BETWEEN

DWYER NOLAN DEVELOPMENTS LIMITED

PLAINTIFF

AND

KINGSCROFT DEVELOPMENTS LIMITED

DEFENDANT

Citations:

WYLIE IRISH LAND LAW 2ED PARA 6.058

DOOLAN V MURRAY UNREP KEANE 21.12.1993 1994/2/414

NICKERSON V BARRACLOUGH 1981 2 AER 369

MAGUIRE V BROWN 1921 1 IR 148

WYLIE IRISH CONVEYANCING LAW 2ED PARA 21.03

NORTON ON DEEDS 2ED 287

BLAND LAW OF EASEMENTS & PROFITS A PRENDRE (1997) 56 225 PARA 12–20

BROWNE V FLOWER 1911 1 CH 219

WHEELDON V BURROWS 1879 12 CH 31

HARMER V JUMBIL (NIGERIA) TIN AREAS LTD 1921 1 CH 200

LONDON CORP V RIGGS 1880 CH 798

BROWNE V MAGUIRE 1922 1 IR 23

DONNELLY V ADAMS 1905 1 IR 154

MCDONAGH V MULHOLLAND 1931 IR 110

Synopsis

Real Property

Conveyancing; contract; right of way; planning permission; conveyance of land; purchaser changed plans for housing development on the contract property, causing the property which the vendor had retained to become land locked; vendor claims a right of way had been reserved; whether there was an express grant of a right of way; whether there was a grant by way of necessity or a grant by implication; whether relevant was development land or agricultural land;whether fact that defendant knew of plaintiff's intention to develop land significant Held: Plaintiff entitled to right of way through defendant's land (Dwyer Nolan Developments Ltd. v. Kingscroft Developments Ltd. - High Court - Kinlen J. - 30/07/1998) - [1999] 1 ILRM 141

An easement of necessity can include a user in excess of that which had been enjoyed prior to the grant of the dominant tenement. The plaintiff was entitled to a right of way over his landlocked property but in the circumstances of the present case the situation might be resolved by making an application to the local authority to provide access through a reserved woodland area. The High Court so held in adjourning the matter for six months to enable the problem to be resolved and in lieu of resolution the Court wishes to addressed on what orders should be made in the light of its findings.

1 Judgment of Mr. Justice Kinlen delivered the 30th day of July. 1998.

2 Both parties are house builders and developers. The Plaintiff owned land which was part of the Kilruddery Estate originally belonging to the Earl of Meath which is partly in the administrative area of the Bray U.D.C. and partly in the administrative area of the Wicklow County Council. By an agreement in writing dated the 7th January, 1994 and made between the parties hereto, the Plaintiff agreed to sell to the Defendant that part of such lands at Kilruddery, Bray in the County of Wicklow, more particularly delineated on the map annexed thereto, thereon surrounded by a red verge line (hereinafter called "the Defendant's lands") but retaining other parts of this land surrounded by a blue verge line (hereinafter called "the Plaintiffs lands"). The sale was completed on the 6th July, 1995 and the Plaintiff furnished the Defendant a transfer dated the 6th July, 1995.

3 It is alleged by the Plaintiff that under and by virtue of the terms of the said agreement and/or the said transfer, there was accepted and reserved out of the Defendant's lands in favour of the Plaintiffs lands a right of way and other easements.

4 It is alleged that the said right of way is a vehicular right of way for all purposes. The Defendant is the owner of the lands in Folio 16366F County Wicklow and the Plaintiff is the owner of the lands in Folio 14183F in the County of Wicklow. A number of issues arose between the parties on the pleadings. However, a motion was brought pursuant to Order 19, Rule 28, of the Rules of the Superior Courts by the Defendant to strike out portions of the Plaintiffs claim as frivolous and vexatious and as an abuse of the process of the Court and having no reasonable prospect of success. This matter came on a motion before Miss Justice Laffoy who gave a written judgment on the 30th January, 1998. She examined the matter with her usual care and removed a number of matters. She says:-

"The nub of the plaintiffs case is that the defendant is in breach of the agreement of the 7th January, 1994 and a transfer of the 6th July, 1994 in denying the plaintiff a right of way and in not agreeing and providing for that right of way in the planning application and by not providing for the line of the right of way. The defendant acknowledges that there is a legitimate issue as to the plaintiffs entitlement to a right of way."

5 The architects, Fenton-Simons, prepared a drawing for residential developments at Kilruddery in April 1993. It shows a proposed southern cross route and then lays out varying housing schemes to be developed on a phased scale which included lands not purchased by the Defendant. From this proposed southern cross route and along the top of the proposed development there is a road shown on the said map as Road 14. As one enters it from the southern cross route the property on the right is all a wooded area and the houses are positioned on the left. As one proceeds along Road 14 there is proposed road No. 17 to the left and then another proposed road No. 16 to the left and finally another road No. 15.to the left. Road 14 then proceeds to the boundary of the retained land of the Plaintiff. The Defendant subsequently requested the local authority to "rejig" the housing arrangement at the end of Road 14. Now there were to be houses on the junction with Road 15 to the end of Road 14 where it abuts the retained land of the Plaintiff. Thus effectively a portion of the road is now part of a housing development. The result is that the Plaintiff contends that his retained land is effectively land-locked. He was not aware of the application to "rejig" the original plan across the proposed Road 14. The question before this Court is whether or not the Plaintiff has a right of way along Road 14 into his own land or whether it is rejigged with some alternative route which was not specified to the Court.

6 By a letter dated the 16th June, 1997 the Defendant denied and continuously denies that the Plaintiff has a right of way over the Defendant's lands from the Plaintiffs lands to the road on the Defendant's lands. The relief sought at paragraph 3 of the Statement of Claim reads as follows:-

7 2 "3. A declaration that the Plaintiff is entitled to a right of way at all times by day and by night with or without motorcars or motor-lorries and all other manner of vehicles howsoever propelled or drawn, laden or unladen to go past and re-pass over and along the lands owned by the Defendant leading to and from the lands owned by the Plaintiff to and from the public road and to a reasonable access to the said public road from the said lands owned by the Plaintiff along such path as may be designated by the Defendant acting reasonably or, in default of agreement, as may be determined by the Court.

8 4. An injunction restraining the Defendant his servants or agents and all other persons having notice thereof from implementing or carrying out further developments on foot of the said planning permission register reference no. 4460/96 on the said lands at Kilruddery, Bray, County Wicklow."

9 It is alleged by the Plaintiff that Roads 14 and 15 would have provided the Plaintiff with the necessary access contemplated by the grant of the right of way and would have prevented the said retained land from being land-locked as it now currently stands. The Order of the 24th July, 1996 by Wicklow County Council granted planning permission to the Defendant for the developments of the subject lands comprising 164 houses subject to 23 conditions. The plan on foot of which the said permission was granted provided for no access to the retained lands of the Plaintiff.

10 Firstly, we look at the contract which is dated the 7th January, 1994 in which the Plaintiff sold to the Defendant the lands described as: All That and Those part of the lands of Irishtown, Kilruddery Demesne east, Kilruddery Demesne west and Oldcourt in the County of Wicklow and more particularly delineated in red on the map "annexed to the agreement and transfer. The land is held in fee simple and was sold for £5,583,600".

11 By a transfer dated the 6th July, 1995 the vendor (Dwyer Nolan Developments Limited) as the registered owner in consideration of the sum of £2,062,800 transferred to the purchaser (Kingscroft Developments Limited) the property for sale with the easements, rights and privileges specified in the Second Schedule thereto excepting and reserving onto the vendor the easements, right and privileges specified in the Third Schedule thereto. In the Second Schedule (dealing with the rights, easements and privileges of the purchaser as successors in title etc.) and the Third Schedule sets out the easements, rights and privileges accepted and reserved out of and over the property for sale to be for the benefit of an appurtenance to the retained property and every part thereof. The first paragraph of each schedule is practically the same except where necessary to adjust the position of the parties. The Second Schedule reads as follows:-

"1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles however propelled or drawn, laden or unladen to go pass and re-pass over and along all roadways and footpaths coloured yellow on the map attached hereto made over or at any time within twenty-one years from the date of this transfer laid over and above the retained property leading from and to the property for sale to and from the public road."

12 The Third Schedule reads:-

"1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles howsoever propelled or drawn, laden or unladen to go pass and re-pass over and along all...