Kildare County Council v Kieran Morrin

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IECA 341
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Number: 2019/508

Between/

Kildare County Council

Plaintiff/Appellant

and

Kieran Morrin

Defendant/Respondent

[2021] IECA 341

Whelan J.

Faherty J.

Pilkington J.

Court of Appeal Number: 2019/508

THE COURT OF APPEAL

Public right of way – Land – Evidence – Appellant appealing against the judgment and order striking out the appellant’s claim that there was established a public right of way over certain lands – Whether the trial judge erred in failing to find that there was an established public right of way

Facts: The plaintiff/appellant, Kildare County Council, appealed to the Court of Appeal against the judgment (31 July 2019) and order (8 November 2019) of the High Court (McDermott J) striking out the Council’s claim that there was established between 1991 and 2012 or 2016, or in the alternative before 1991, a public right of way over certain lands situate at Corban’s Lane, Naas, County Kildare which abut the premises of the defendant/respondent, Mr Morrin, at no. 2 and no. 3 Dara Court, Corban’s Lane, Naas. In respect of the defendant’s counterclaim, the trial judge granted a declaration that the parking area abutting the defendant’s said lands at Corban’s Lane was at all times prior to its compulsory purchase by the Council in the ownership and use of the defendant and/or his predecessors-in-title. The defendant was granted the costs of the action and the counterclaim. The Council appealed from the entirety of the orders made by the High Court on 8 November 2019.

Held by Faherty J that it was clear from the trial judge’s judgment that he listened carefully to the witnesses, that he understood the substance of each witness’s evidence and that he summarised the evidence given at the trial in a manner which was entirely appropriate. Faherty J held that the trial judge weighed the respective witness testimonies and, where he felt it appropriate, took account of “real evidence”. In Faherty J’s view, the trial judge gave clear reasons as to why he came to his decision and he had a sufficient evidential basis upon which to arrive at that decision. That being the case, Faherty J held that it was therefore no function of the Court to deconstruct the judgment of the High Court and to reconstruct it to reflect what the Council submitted should be the findings on the asserted public right of way. Faherty J held that the Court was precluded from so doing.

Faherty J dismissed the appeal and affirmed the High Court orders. As the Council had not succeeded in the appeal on any ground, it followed in Faherty J’s preliminary view that the defendant should be entitled to his costs.

Appeal dismissed.

UNAPPROVED

NO REDACTION REQUIRED

Judgment of Ms. Justice Faherty delivered on the 21 ^st day of December 2021

1 . This is the plaintiff's (hereinafter “the Council”) appeal against the judgment (31 July 2019) and Order (8 November 2019) of the High Court (McDermott J.) striking out the Council's claim that there was established between 1991 and 2012 or 2016, or in the alternative before 1991, a public right of way over certain lands situate at Corban's Lane, Naas, County Kildare which abut the defendant's premises at no. 2 and no. 3 Dara Court, Corban's Lane, Naas. In respect of the defendant's counterclaim, the trial judge granted a declaration that the parking area abutting the defendant's said lands at Corban's Lane was at all times prior to its compulsory purchase by the Council in the ownership and use of the defendant and/or his predecessors-in-title. The defendant was granted the costs of the action and the counterclaim. The Council appeals from the entirety of the Orders made by the High Court on 8 November 2019.

2 . To best understand the issues arising on the appeal, it is necessary to outline the events giving rise to the within proceedings.

Background

3 . The proceedings arise from a Notice to Treat served on the defendant relating to plots reference numbers 106a.202 (hereinafter “plot 202”) and 106b.201 (hereinafter “plot 201”) in respect of the Naas Town Council Compulsory Purchase (Corban's Lane/Friary Road Improvement) Order No. 2, 2009.

4 . The acquisition by the Council of plots 201 and 202 had its genesis in the decision of An Bord Pleanála on 28 June 2006 to grant planning permission for the development of Naas Town Centre and which imposed as a condition to that permission, inter alia, “the widening of Corban's Lane with footpaths on either side”.

5 . At the public hearing which took place in the context of the Council's Compulsory Purchase Order (“CPO”) made on 25 June 2009, part of the Council's case was that the defendant's lands were located in the vicinity of a well-known traffic “pinch point” which was thereby required to be compulsorily acquired. It was conceded on behalf of the Council that “compensation will be paid by TC for loss of car parking spaces”. The Inspector's Report that followed, dated 12 February 2010, described plot 202 and plot 201 as occupying a corner location in the vicinity of a “well-known pinch point” along the road network “for which the Town Council has had a long-term objective to address…” The Inspector opined that “it would not be possible to implement a safe and effective improvement scheme at this location without acquiring these lands and the compulsory purchase of the objector's lands at this location is justified”. It was acknowledged in the Report that the proposed CPO for a Part 8 Road Improvement Scheme “will involve the loss of car parking spaces to the front of [the defendant's] premises…” Earlier in the Report, the Inspector stated that “the number of car parking spaces should be determined on the basis of the planning permission granted under Reg. Ref. 23774/538 which provided for a total of 11 spaces”.

The defendant's acquisition of the properties and their pre-acquisition planning history

6 . No. 2 Dara Court was acquired by the defendant on 24 April 1990 from a Ms. Maureen Cullen. Ms. Cullen had acquired ownership of No. 2 Dara Court in November 1975 in turn from a Mr. Daniel Donnelly. At the time of the purchase of this property by the defendant, it was a two-storey building laid out in bedsit units.

7 . By Indenture dated 24 January 1977, Mr. Donnelly sold the property adjacent to no. 2 Dara Court, which subsequently became no. 3 Dara Court with stores and offices on the corner of Corban's Lane, to Radio TV Rentals Limited who thereafter sold it to ETV Limited on 27 October 1993. ETV Limited in turn conveyed no. 3 to Mr. Alex Shields on 12 March 1997 who sold it on to Mr. Edward Ennis on 25 February 2003. Mr. Ennis then sold no. 3 to the defendant under Indenture dated 19 May 2007. Each conveyance described the property by reference to the map annexed to the indenture of conveyance from Mr. Donnelly to Ms. Cullen of no. 2 Dara Court dated 24 November 1975.

8 . No. 2 and no. 3 Dara Court are both situate on Corban's Lane with no. 3 located at the junction of Corban's Lane and the roadway hereinafter referred to as “Lough Buí”.

9 . When nos. 2 and 3 Dara Court were in the ownership of Mr. Donnelly he made planning applications for a change of use for the properties. Evidence of this planning history was tendered in the court below on behalf of the Council by Mr. George Willoughby, a chartered engineer employed by the Council since 1982.

10 . On 2 February 1973, in support of a then planning application for the erection of a store and garage, Mr. Donnelly submitted a drawing which indicated an existing boundary wall running in front of his property adjacent to Corban's Lane. The application was refused on 26 March 1973 because the proposed development was deemed to be premature in that the road layout for the area had not been determined and the proposed development would prejudice the Council's future plans for public roads in the area.

11 . Mr. Donnelly made a further planning application in May 1974 proposing a changed use from a house to flats and from a garage to a shop. The drawing he submitted, date stamped 17 May 1974, again showed an existing boundary wall adjacent to Corban's Lane.

12 . On 14 May 1974, a Mr. Ellis lodged an objection to the proposed change of use on the basis that Corban's Lane was narrow and overused by traffic seeking to avoid the main street. In response to his objections, and to a request for additional information from the Naas UDC Town Clerk, Mr. Donnelly in a letter of 23 July 1974 indicated that he had “now renovated the corner at Corban's Lane”. On 23 July 1974, he submitted a further drawing outlining the proposed change of use of the property and which denoted that the existing boundary wall adjacent to Corban's Lane had been removed and which showed 11 car parking spaces at the front of the property.

13 . On 26 August 1974, Naas UDC notified Mr. Donnelly of a decision to grant permission subject to conditions. The said conditions provided, inter alia, that the development was to be completed strictly in accordance with the plans submitted on 23 July 1974. This was appealed by Mr. Ellis to the Secretary of the Department of Local Government on 9 September 1974 on the grounds, inter alia, that the proposed development was situate in the vicinity of a dangerous corner over which heavy traffic passed and which would increase “if flats and a shop was allowed with the resultant parking these will inevitably cause”.

14 . In a letter dated 4 October 1974 to the Secretary, Mr. Donnelly stated that with the introduction of new traffic lights on the Main Street, the junction of Corban's Lane and South Main Street had now been closed to motor vehicles and was open only to pedestrians. He did not accept that Corban's Lane was a heavy traffic area or that the development would cause a traffic hazard. He advised that a twelve-foot high boundary wall at the junction of Corban's Lane and Lough Buí had been removed which had improved the sight lines at the...