Dwyer Nolan Developments Ltd v Kingscroft Developments Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 09 February 2007
• Neutral Citation: [2007] IEHC 24
• Docket Number: [1997 No. 12470 P]
• Court: High Court
• Date: 09 February 2007

[2007] IEHC 24

THE HIGH COURT

Record No. 12470 P/1997

DWYER NOLAN DEVELOPMENTS LTD v KINGSCROFT DEVELOPMENTS LTD

BETWEEN/

DWYER NOLAN DEVELOPMENTS LIMITED

PLAINTIFF

AND

KINGSCROFT DEVELOPMENTS LIMITED

DEFENDANT

LAND LAW

Easements

Right of way - Nuisance - Damages - Wrongful interference with right of way - Plaintiff's entitlement to damages - Whether interference with right of way was substantial - Measurement of damages - Assessment of diminution in value - Claimant's duty to mitigate loss - Plaintiff granted declaration and damages (1997/12470 - Laffoy J - 9/2/2007) [2007] IEHC 24

Nolan Dwyer Developments Ltd v Kingscroft Developments Ltd

the plaintiff had transferred property to the defendant, reserving to itself a right of way over the land so transferred to other, land locked, lands which it had retained. The defendant subsequently developed the servient tenement in a manner inconsistent with the dominant tenement's right of way so as to create a nuisance to and wrongful interference with it. The High Court had previously found that the plaintiff was entitled to a right of way to his land locked property over the servient tenement and adjourned the issue of damages to a later date.

Held by Ms Justice Laffoy in measuring damages at €100,000 that the dominant owner could not complain about the obstruction of a private right of way unless it was substantial and he could prove injury associated therewith. The inability of the plaintiff to use the access for ordinary vehicular traffic was a substantial interference with his right of way.

That where the nuisance to a right of way did not entail physical damage to the land, diminution in value and cost of abatement were acceptable measures of damage.

That the proper approach to measuring damages to which the plaintiff was entitled could not countenance an assumption that, but for the defendant's unlawful activity, the lands would have a value which reflected the ability, as opposed to possible potential, to develop them for light industrial or residential purposes with access through the servient tenement.

Reporter: P.C.

1 Miss Justice Laffoy delivered 9th February, 2007.

The Court's Function

2 In order to define with precision the court's current function in this matter, it is necessary to consider the background in some detail.

3 These proceedings were initiated by plenary summons which was issued on 22 ^nd October, 1997. At an early stage a motion brought by the defendant to have the proceedings dismissed on the ground that the claims were frivolous and vexatious and an abuse of process was partly successful. However, what I described as the "nub of the plaintiff's case" in an ex tempore judgment which I delivered on 30 ^th January, 1998 on the motion remained in the case. That was whether the plaintiff's allegation that the defendant had acted wrongfully in denying that the plaintiff had a right of way over lands of the defendant and in not agreeing and providing for that right of way in a planning application and by not providing for the line of the right of way was well founded. The right of way claimed by the plaintiff was for the benefit of lands retained by the plaintiff (the retained lands) on the sale in 1994 by the plaintiff to the defendant of contiguous lands with the benefit of a 1993 planning permission, which, if implemented, would have afforded vehicular access to and from the retained lands from and to the public road over the roads on the lands sold to the defendant. The site layout sanctioned in the 1993 planning permission provided for a proposed estate road on the lands sold to the defendant extending to the boundary of the retained lands. However, as a result of an application made by the defendant for planning permission for a revised layout, which was granted in 1996, the lands sold to the defendant were developed in accordance with that permission in a manner whereby the road in question, which has been referred to as road 14 in these proceedings, did not extend to the boundary of the retained lands.

4 The substantive proceedings came on for hearing before Kinlen J. in due course. He delivered judgment on 30 ^th July, 1998. The judgment is reported at [1999] 1 I.L.R.M. 141. Kinlen J. set out his decision at p. 154 in the following terms:

"The court has decided that ... the plaintiff was and is entitled to a right of way to his land locked property.

It seems to the court that if both parties applied to the local authority to provide access through the reserved woodland they might resolve this issue. The area for industrial development will bring work and wealth but if sterile will be useless.

The court proposes to adjourn this matter for six months to enable the problem to be resolved. If this solution is not achieved the court would wish to be addressed on alternative orders in view of the court's findings."

5 As I understand it, the reference to "the reserved woodland" is a reference to an area which was designated public open space in the defendant's 1996 planning permission and what Kinlen J. envisaged was an extension of road 14 through that area to the boundary of the retained lands. The reference to the "area for industrial development" is a reference to the retained lands, which at the time were, and still are, zoned for light industrial development in the relevant development plan. These observations prompt me to refer to factual features of some significance. The retained lands were, and are, within the functional area of Bray Urban District Council (now Bray Town Council), whereas the lands sold to the defendant, including the area over which the extension to road 14 would be constructed, were, and are, within the functional area of Wicklow County Council, being zoned residential. These differences explain why the plaintiff did not deal with the retained lands in the same way as it dealt with the lands sold to the defendant.

6 In his judgment, in outlining submissions made by counsel for the plaintiff, Kinlen J. recorded the following (at p. 149):

"However, he concedes that the defendant has left a gap through which the plaintiff may be allowed in if compelled by this Court. There is physical interference by the construction of the houses. The difference is that the sole surviving means of access is across land designated as open space under the planning permission upon which the defendant has acted. He argues that it is highly unlikely that a road would be permitted across a reserved open space. The result is that his client is left to his land which would have no commercial value. He concedes that if he got planning permission there is then no damage whatsoever to the value of the site and he would be happy as he would have been had the defendant complied with its obligations. If he does not get a road through the sole remaining means of access with planning permission then he has a worthless site. He is not looking for damages. He wants that for which he contracted."

7 Following the delivery of the judgment of Kinlen J., in 1998 the defendant submitted two separate applications to the planning authority, Wicklow County Council, for the extension of road 14 to the boundary of the retained lands. Both applications were refused. The defendant appealed to An Bord Pleanála, which refused both applications in early August, 1999. The same reason was ascribed for the refusal in each case, which was stated as follows:

"Having regard to the permission granted by the planning authority on 6 ^th September, 1996 under planning register reference No. 4460/96, it is considered that the proposed road extension would be premature in the absence of a determination by the planning authority of a road layout to serve the area to which the proposed development would give access, particularly having regard to the undeveloped nature of that area."

8 Subsequently, by letter dated 24 ^th March, 2000 to the plaintiff's solicitors, the defendant's solicitors suggested that it was clear from its decisions that An Bord Pleanála did not wish to grant a road "to nowhere" and that this was not unreasonable. The plaintiff was called on to make a planning application to Bray Urban District Council for the retained lands and it was intimated that the defendant would be willing to make a planning application at the same time to Wicklow County Council in relation to the proposed extension of road 14 to facilitate the plaintiff's application. There was no response by the plaintiff to that suggestion. The plaintiff has never applied for planning permission for the development of the retained lands, which comprise an area of 3.05 acres of level wooded land of irregular shape traversed by a stream and lying between the lands sold and developed by the defendant as Hollybrook Park Estate on the east and an industrial estate, apparently known as Bray Business Park, to the west. The retained lands have remained unused.

9 The matter was brought back before Kinlen J. in July 2001. On 4 ^th July, 2001 he made an order, which was expressed to be made "in accordance with the judgment delivered herein on 30 ^th day of July, 1998 wherein the court found that the plaintiff was and is entitled to a right of way to his land locked property". The material part of the order was in the following terms:

"... the court doth declare that the plaintiff was and is entitled to a right of way at all times by day and by night with or without motor cars or motor lorries and all other manner of vehicles howsoever propelled or drawn whether laden or unladen to go pass and re-pass over and along the lands owned by the defendant (and comprised in folio 16366F County Wicklow) leading to and from the lands owned by the plaintiff (and comprised in folio 14185F County Wicklow) to and from the public road and to a reasonable...