Kildare County Council v Morrin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mc Dermott
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IEHC 606
• Docket Number: [2016 No. 5646 P]
• Date: 31 July 2019

[2019] IEHC 606

THE HIGH COURT

McDermott J.

[2016 No. 5646 P]

BETWEEN

KILDARE COUNTY COUNCIL

PLAINTIFF

AND

KIERAN MORRIN

DEFENDANT

Declaratory relief – Right of way – Public road – Plaintiff seeking declaratory relief – Whether the plaintiff had proven that there was established a public right of way over the area in dispute

Facts: The plaintiff, Kildare County Council, was the local authority for County Kildare, including the town of Naas. The defendant, Mr Morrin, was the owner of 2 and 3 Dara Court, Corban’s Lane, Naas, having acquired Number 2 in 1990 and Number 3 in 2007. Proceedings arose from a notice to treat dated 20th February, 2012, served on the defendant in respect of plots reference numbers. 106a.202 and 106b.201 in respect of the Naas Town Council Compulsory Purchase (Corban’s Lane/Friary Road Improvement) Order No. 2 2009. Mr Neary, FRCSI, FRISC ACI, Arb. Property Arbitrator was nominated to hear and determine the defendant’s claim for compensation under the Statutory Compensation Code in respect of the acquired lands described in the two plots. The defendant contended that the acquired lands must be valued on the basis that in order for a developer of third party lands to complete a major town centre development nearby, the developer would have had no choice but to purchase the acquired lands at “ransom value”. In the course of the hearing before the arbitrator in January, 2015 and February, 2016, a legal dispute arose between the plaintiff, as the Acquiring Authority and the defendant in respect of the existence or extent of the public road and/or road and/or roadway on the two plots. The plaintiff claimed a declaration that a public right of way exists in common law on the entirety of plot reference 106.a.202 referred to in the CPO as of the date of Notice to Treat at 20th February, 2012, as referred to in drawing DC-CPO-10 attached to the schedule to the statement of claim and a declaration that the road described as Corban’s Lane constitutes a roadway, a public road, within the meaning of the Roads Act 1993 over the entirety of plot 106.a.202 and that the same road encompasses a public road right of passage over the entirety of the plot. The defendant sought a declaration that the area in suit was at all times prior to its compulsory purchase by the plaintiff in the ownership and use of the defendant and his predecessors in title. He also claimed damages for slander of title because the plaintiff published or caused to be published a notification that the land on 106a202 was a public road and not therefore in the possession of the defendant.

Held by the High Court (McDermott J) that the plaintiff had not proven as a matter of probability based on sufficiently cogent evidence that there was established, between 1991 and 2012 or 2016 or from before 1991, a public right of way over the area in dispute or its dedication as such by the property owners who were still exercising their rights over it. McDermott J refused the relief claimed by the plaintiff.

McDermott J held that the defendant was entitled to the declaration sought in paragraph 1 of the relief claimed based on the findings of fact made by the court. McDermott J was not satisfied that there was any basis for the claim for damages based on slander of title. He therefore dismissed that claim.

Relief refused.

Judgement of Mr. Justice Mc Dermott delivered on the 31st day of July 2019

1 The plaintiff is the local authority for County Kildare, including the town of Naas. The defendant is the owner of 2 and 3 Dara Court, Corban's Lane, Naas, having acquired Number 2 in 1990 and Number 3 in 2007.

2 These proceedings arise from a notice to treat dated 20th February, 2012, served on the defendant in respect of plots reference numbers. 106a.202 and 106b.201 in respect of the Naas Town Council Compulsory Purchase (Corban's Lane/Friary Road Improvement) Order No. 2 2009.

3 Mr. Michael Neary, FRCSI, FRISC ACI, Arb. Property Arbitrator was nominated to hear and determine the defendant's claim for compensation under the Statutory Compensation Code in respect of the acquired lands described in the two plots. The defendant contends that the acquired lands must be valued on the basis that in order for a developer of third party lands to complete a major town centre development nearby, the developer would have had no choice but to purchase the acquired lands at ‘ransom value’. In the course of the hearing before the arbitrator in January, 2015 and February, 2016, a legal dispute arose between the plaintiff, as the Acquiring Authority and the defendant in respect of the existence or extent of the public road and/or road and/or roadway on the two plots, in the circumstances outlined in the statement of claim at para. 7:-

‘(i) The title documents referred to by the [defendant] do not identify, at the date of Notice to Treat on 20th February, 2012, the extent of the subsoil (known as roadbed, in valuation terminology) in the titled ownership of the defendant, upon which there exists a public road and/or roadway and/or road in common law or under Statute;

(ii) The [defendant] appears to accept that part of the subsoil in his titled ownership constitutes roadbed upon which there exists a public road and/or roadway and/or road in common law or under Statute at the date of Notice to Treat at 20th February, 2012. However, the [defendant] disputes the extent of the public road and/or roadway and/or road at common law or under Statute on the date of Notice to Treat, 20th February, 2012. At the Arbitration hearing, the [defendant] referred to drawing 114-A28-PL05-REVB dated 6th February, 2015 as identifying the [defendant's] land boundary shown in red (which drawing is attached to the schedule hereto);

(iii) The [defendant] says that the schedule to the Compulsory Purchase Order and Notice to Treat is incorrect in purporting to identify the plot references as ‘public road’ or ‘road’ at the date of the Notice to Treat at 20th February, 2012.

(iv) The Council says that there is in existence a public road and/or road and/or roadway on the entirety of plot reference 106a.202 at the date of Notice to Treat at 20th February, 2012;

(v) The Council says that the defendant has taken no step to prevent the use of land in his titled ownership as public road/road/roadway over many years on the above plot reference;

(vi) The Council says that the defendant does not have, as of the date of Notice to Treat of 20th February, 2012 an unencumbered freehold title in circumstances where there exists a public road and/or road and/or roadway on the subsoil (roadbed) of the entirety of the plot reference 106.a.202 in the titled ownership of the defendant;’

4 The plaintiff claims that the carriageway on Corban's Lane is a roadway and thereby part of the public road, which services and permits vehicular traffic to pass and re-pass over the entirety of the plot reference 106.a.202 referred to in the CPO as of 20th February, 2012 and that the roadway constitutes a public right of passage, a highway and a public road. In evidence some witnesses suggested that a public right of way and public road had been established by 1991 as a matter of fact and by reference to the taking in charge of Corban's Lane sometime before 1978. A boundary wall was removed from the defendant's property in the mid-1970s and a footpath was installed on the northern side of the Lane opposite his property in 1991. This caused traffic to move south and encroach upon his property. It was submitted that the width of the public right of way was thereby expanded to include that area. If that is not so it was submitted that the use of that area by traffic thereafter created a public right of way over the area in the period between 1991 and the date of the issuing of the Notice to Treat on 20th February 2012 or the plenary summons on the 24th June 2016. It was also claimed that the defendant's right of ownership is consistent with the existence of a roadway or public road and/or road in common law or under Statute on the entirety of the plot reference 106.a.202 but that a public right of way exists on the entirety of the plot and that the title vested in the claimant and the subsoil is subject to that right of passage as at the date of the Notice to Treat or the date of commencement of the proceedings.

5 The plaintiff therefore claims a declaration that a public right of way exists in common law on the entirety of plot reference 106.a.202 referred to in the CPO as of the date of Notice to Treat at 20th February, 2012, as referred to in drawing DC-CPO-10 attached to the schedule to the statement of claim and a declaration that the road described as Corban's Lane constitutes a roadway, a public road, within the meaning of the Roads Act, 1993 (as amended) over the entirety of plot 106.a.202 and that the same road encompasses a public road right of passage over the entirety of the plot.

6 The defendant has entered a full defence and counterclaim. It is denied that the area in issue could as a matter of fact or law be described as a roadway, road or public road within the meaning of the Roads Act, 1993 or that the characterisation of the relevant plot is in anyway relevant to these proceedings. The plaintiff claims that he, his servants and/or tenants and licensees parked vehicles on a regular basis perpendicular to the buildings on his lands at Corban's Lane, up to the time of the Compulsory Purchase Order and had thereby asserted ownership of the area of land in dispute and consequently, denies that he has taken no steps to prevent the use of the land in his ‘titled ownership’ as public road over many years on plot 106.a.202 as alleged. It is also denied that the presence of a road surface or surface similar to that of a road which allows vehicular traffic to pass and re-pass over any part of the defendant's land or not inhibiting such traffic from so passing...