Harnett and Others v Broadreach investments Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 30 January 2025
• Neutral Citation: [2025] IEHC 47
• Court: High Court
• Docket Number: Record No. 2021 3673P

Between

Patrick Harnett, Olive Harnett, Luke Harnett, Belinda Harnett, Neil Harnett And Francis J Murphy

Plaintiffs

and

Broadreach Investments Limited

Defendant

[2025] IEHC 47

Record No. 2021 3673P

THE HIGH COURT

Property law – Right of way – Easements – Applicant seeks a declaration of a right of way, an injunction, and damages – Whether the Harnetts have a legal right of way or only permissive access

Facts: In this case the plaintiffs, Harnett (P.), Harnett (O.), Harnett (L.), Harnett (B.), Harnett (N.), and Murphy (F.J.), brought proceedings against Broadreach Investments Ltd, claiming a right of way over Bellinter House’s main avenue, which the defendant owned. The plaintiffs, who owned various parcels of land originally part of the Bellinter estate, argued that their right of way was acquired through prescription under the Prescription Act, necessity under Section 34 of the Land Law (Ireland) Act 1896, and long-standing continuous use for access to their homes, farm, and business. Broadreach Investments denied the existence of a legal right of way, asserting that the plaintiffs’ access was merely permissive, had not been continuous, and was revoked when barriers were installed. Broadreach Investments also argued that any historical right of way had been abandoned due to changes in land use. The plaintiffs sought a declaration of their right of way, an injunction preventing obstruction, damages for interference, and an order to remove barriers blocking their access.

Held by Dignam J, the Harnetts had a legal right of way over Bellinter House’s main avenue, established by prescription under the Prescription Act and necessity under Section 34 of the Land Law (Ireland) Act 1896. The High Court relied on Wheeldon v. Burrows (1879) 12 Ch D 31, confirming that easements can pass with land transfers, reinforcing that long-term, uninterrupted use can establish prescriptive rights. The defendant’s claim that the right of way was permissive and revocable was rejected, as was the argument that it was abandoned due to changes in land use, which held that continued use supports a prescriptive right. The High Court granted declaratory relief, an injunction preventing obstruction, and damages for interference, and ordered the removal of barriers, with costs awarded to the plaintiffs.

Dignam J concluded that the Harnetts had a legal right of way, granting a declaration, injunction, damages, and costs, and ordering barrier removal.

Application dismissed.

Judgment of Mr. Justice Conor Dignam delivered on the 30 ^th day of January 2025

INTRODUCTION

1 These proceedings concern a claimed right of way in favour of the plaintiffs' lands over the lands of the defendant.

2 The defendant is the owner of a property called Bellinter House. It has operated as a hotel for a number of years (approximately eighteen years). Prior to that it was owned by the Sisters of Sion religious order since 1966, who operated it as a retreat and education centre. It has a number of acres of land attached to it and has a gated entrance and a driveway. It was originally part of a much larger holding (Bellinter estate) before the estate was divided by the Land Commission in 1965. The plaintiffs are the owners of parcels of lands which were originally part of the estate before it was divided. They are all members of the same family. The first and second-plaintiffs are a married couple. The third and fifth-named plaintiffs are their adult children. The fourth-named plaintiff is married to the third-named plaintiff. The sixth-named plaintiff is the executor of the estate of Mr. Luke Harnett Senior, the first-named plaintiff's father. For ease of reference, where necessary, I will refer to the first to fifth-named plaintiffs by their first names.

3 The background to the dispute is as follows. From 1954 to 1965 Luke Harnett Senior was the steward of Bellinter estate. He lived in the Steward's House. In 1965, the Land Commission divided up Bellinter estate into several folios under the provisions of the Land Purchase Acts. Luke Harnett Senior purchased 32.435 hectares of lands by way of a Purchase Agreement. The lands consisted of agricultural land with yards and outbuildings together with the Steward's House and its outbuildings. The plaintiffs were put on proof of this purchase in the Defence but this was not pushed at trial. These lands were contained in Folio 4496F (“the Original Folio”).

4 The defendant's lands are contained in Folio MH47334F. For convenience I will refer to them as “Bellinter House”.

5 On the 21 ^st April 1978, Luke Harnett Senior carved approximately 0.84 hectares out of the Original Folio and transferred them to the first and second-named plaintiffs. They now contain the first and second-named plaintiffs' home. The lands are contained in Folio MH6853F. The first and second-named plaintiffs are the registered owners. I will refer to them as “Patrick and Olive Harnett's lands”, “Patrick and Olive's lands”, or “Patrick and Olive's house”.

6 On the 3 ^rd March 1983, Luke Harnett Senior transferred the farm to Patrick Harnett. The farm formed the bulk of the lands in the Original Folio but were carved out of that Folio and are now contained in Folio MH14190F. These lands are essentially the agricultural lands together with yards and outbuildings adjacent to the Steward's House. They consist of approximately 31.57 hectares. Patrick Harnett is the registered owner. I will refer to these lands as “Patrick Harnett's lands”, “Patrick's lands”, or “the farmlands”.

7 On the 24 ^th February 2009, Patrick Harnett carved approximately 0.4 hectares out of the farmlands and transferred them to Luke and Belinda Harnett. They were carved out of Folio 14190F and are now contained in Folio MH6279F. They contain the third and fourth-named plaintiffs' house. I will refer to them as “Luke and Belinda Harnett's lands”, “Luke and Belinda's lands” or “Luke and Belinda's house”.

8 Finally, on the 7 ^th April 2009, Folio MH64459F was carved out of the farmlands, i.e. Patrick Harnett's lands, and transferred to Neil Harnett. These lands comprise approximately 0.41 hectares. Planning permission was granted for the construction of a house. I will refer to this as “Neil Harnett's lands” or “Neil's lands”.

9 Patrick Harnett appears to be the beneficial owner of the Steward's House under the will of Luke Harnett Senior. I refer to this further below. I proceed on that basis.

10 Thus, the effect of these dealings is that the Original Folio consists only of the Steward's House (and stables and outhouses attached to it), and there are now four other Folios, one consisting of most of the original agricultural lands including yards and agricultural buildings (those yards and agricultural buildings are on Patrick Harnett's lands but are adjacent to the Steward's House), one consisting of Patrick and Olive Harnett's house, another consisting of Luke and Belinda Harnett's house and the fourth consisting of Neil Harnett's lands.

11 As noted above, the Steward's House lands have stables and outbuildings. I will simply refer to it as the Steward's House. It is now rented to tenants.

12 The plaintiffs refer to all of these parcels of lands collectively as the “Harnett Family Land”.

13 The relevant point of contact between the lands owned by the plaintiffs and Bellinter House is the Steward's House.

14 The Sisters of Sion transferred ownership of Bellinter House to Mr. Jonathan Bourke, Eoin Foyle and John Reynolds on the 20 ^th May 2004 and, following renovations, it opened as a hotel, known as Bellinter House Hotel in late 2006. They transferred ownership to the defendant on the 31 ^st March 2016 and the defendant was registered as owner of Bellinter House on Folio MH47334F.

15 I will deal with the evidence in greater detail below but, in summary, the plaintiffs claim that prior to the subdivision of Bellinter estate there were three entrances to the Steward's House and the farmlands: one through the main gate and along the main avenue of Bellinter House; another from essentially the other side of the estate at Bellinter Bridge; and a third which was closed by the Land Commission. The entrance from Bellinter Bridge runs through the farmlands which were transferred to Luke Harnett Senior by the Land Commission (and subsequently to Patrick Harnett).

16 All of the above facts are agreed or, in the case of the original purchase by Luke Harnett Senior, are not seriously disputed.

17 The plaintiffs also claim that prior to the sub-division of the estate, the entrance along the main avenue of Bellinter House was used for all purposes both domestic and agricultural and the Bellinter Bridge entrance was solely used for agricultural purposes.

18 They claim that since the purchase by Luke Harnett Senior the main avenue of Bellinter House has always been the primary means of access to the Steward's House and, through it, the adjoining agricultural yard and outbuildings on Patrick Harnett's lands used by the plaintiffs and visitors to the properties. They also claim that it has been one of the means of access to the rest of the farmlands and the four folios and that the owners of those lands enjoy a right of access (paragraph 4 of the Statement of Claim).

19 The following is also not in dispute.

20 In August 2019, issues arose about the entrance into the Steward's House being blocked by the cars of guests attending weddings in the hotel. This was raised with the general manager of the hotel.

21 In January 2020, solicitors on behalf of the defendant wrote to Patrick Harnett expressing concern about, inter alia, the use by him and the tenants of the Steward's House of Bellinter House's main avenue to access the Steward's House. The letter also stated that they did not have permission to enter any part of Bellinter House lands unless they were visiting the hotel. The letter called on them to cease and...