McKeever v Hay and Others

JurisdictionIreland
JudgeMr. Justice Kevin Feeney
Judgment Date08 May 2008
Neutral Citation[2008] IEHC 145
CourtHigh Court
Docket NumberNo.12541P/2000
Date08 May 2008

[2008] IEHC 145

THE HIGH COURT

No.12541P/2000
McKeever v Hay & Ors

BETWEEN

CATHERINE McKEEVER
PLAINTIFF

AND

RICHARD HAY, CYRIL McELHINNEY, PATRICK DOHERTY & BY ORDER THE COUNTY COUNCIL OF THE COUNTY OF DONEGAL
DEFENDANTS

PATTERSON v MURPHY 1978 ILRM 85

GREENWOOD v HORNSEY 1886 33 CH D 471

REDLAND BRICKS LTD v MORRIS 1970 AC 652

JAGGARD v SAWYER 1995 1 WLR 269

PATTERSON v MURPHY 1978 ILRM 85

KEATING & CO LTD v JERVIS SHOPPING CENTRE LTD 1997 1 IR 512 1996/6/1546

SHELFER v CITY OF LONDON ELECTRIC LIGHTING CO 1895

WOLLERTON & WILSON LTD v RICHARD COSTAIN LTD 1970 1 AER 483

INJUNCTION

Mandatory

Trespass to land - Laying of water pipe on lands of which plaintiff 1/17th joint owner - Majority of owners giving consent - Plaintiff withholding consent following her indication that consent would be forthcoming - Compulsory purchase of lands pending - Principles to be applied - Extent of injury to plaintiff's rights - Whether capable of being adequately compensated by award of damages - Conduct of parties - Whether oppressive to defendant to grant injunction - Whether injunction should be granted - Patterson v Murphy [1978] ILRM 85 followed; Greenwood v Hornsey (1886) 33 Ch D 471, Jaggard v Sawyer [1995] 1 WLR 269 and Keating & Co Ltd v Jervis Shopping Centre [1997] 1 IR 512 considered - Provisional injunction granted subject to refusal of compulsory purchase order and €7,500 damages awarded for interference with plaintiff's rights (2000/12541P - Feeney J - 8/5/2008) [2008] IEHC 145

McKeever v Hay

Facts: The plaintiff was the owner and entitled to occupation of a 1/17th share of 170 acres of land in Co. Donegal. The plaintiff alleged there was a deliberate and continuing trespass without the plaintiff’s consent and sought injunctive relief. The defendants urged that damages should be granted in lieu of an injunction.

Held by Feeney J. in granting an injunction, with a stay on the injunction, that where there was a deliberate and continuing trespass it was appropriate to grant an injunction. The Court had to consider the nature and timing of such injunction by reference to the circumstances as they existed at the date of the hearing. Since there had been little interference with the lands and there had been no diminution in the value of the lands, the plaintiff was entitled to Eur7,500 for upset and distress.

ReporterL R.W.

Mr. Justice Kevin Feeney
1

The plaintiff is the owner and entitled to occupation of a 1/17th share of one hundred and seventy acres of land at Ballyoghagan, Rosepenna, Downings in the County of Donegal. She is the registered owner under Folio Number 35746, register of ownership of Freehold land in the county of Donegal.

2

The hundred and seventy acres are referred to as "The Commonage" and are situated just outside Carrickart on the road to Downings. A detailed map of the lands was handed into Court by Tom O'Brien, consulting engineer. That map shows that there is a public road running through the lands which is a side road off the main Carrickart to Downings road. That road cuts across the Commonage Lands and then turns left at a right angle to run parallel to the sea shore until it reaches a causeway to the Island Roy.

3

The houses on the Island Roy did not have a piped water supply and had to rely on wells. The supply from such wells was erratic and during dry periods no water was available. There was also a problem with occasional contamination resulting in an inability to use the water for drinking. This resulted in considerable efforts being made to have the island provided with a permanent water supply. There was a treated public water supply available in both Carrickart and Downings and that water supply came from a lake adjacent to Carrickart, where it was treated, and was then piped through Carrickart and along the main road to Downings.

4

In the late 1970s the community on the Island Roy, which is a small community consisting of a handful of houses, sought to establish a group water scheme. At that time it proved impossible to achieve such objective due to the limited funds available from the local authority for such schemes and due to the inability of all the householders on the Island Roy to fund a large percentage of the overall cost.

5

The need for a water scheme on the Island Roy remained and in 1998 the plans for same were reactivated. By that stage there were greater grants available and it was possible to progress the scheme. The scheme was one of many sought to be implemented throughout the county of Donegal. The method adopted for the implementation of such group water supply schemes is that there is a preliminary agreement between a group of persons seeking the group water supply and Donegal County Council. In this instance the preliminary agreement was completed on the 8th July, 1998 and that agreement was to be signed by all group members. It is in fact signed by eight persons.

6

The agreement sought to follow recognised procedures in that the works were to be carried out by the group. In this case the group was called the Island Roy Group Water Scheme. The contractor was employed by that group but the works were to be carried out in accordance with general specifications issued by Donegal County Council. In fact the County Council were actively involved in enforcing appropriate specifications and standards. This was due to the fact that the agreement envisaged the water supply system being taken over by the County Council at a future date.

7

By the second half of 2000 considerable progress had been made in relation to the scheme and the stage was reached where the commencement of work could be contemplated. The Group Water Supply Scheme was to receive water from the Carrickart/Downings supply by attaching a pipe to that supply at a point on the main Carrickart to Downings road. It was then envisaged that the pipe would proceed on or adjacent to a side road leading to the causeway to the Island Roy. The road which went from the Carrickart to Downings main road to the causeway crossed the hundred and seventy acres of land known as The Commonage. The first portion of that roadway was a road which had been "taken in charge" by the local authority and the second portion of the roadway after the left hand right angle as far as the causeway was over a right of way.

8

Under the preliminary agreement it was the obligation of the group to acquire all necessary lands, rights of way, way-leaves and water rights to the satisfaction of Donegal County Council. The terms of the agreement also provided for the transfer of such rights and ownerships to the County Council.

9

The Court heard evidence from a senior engineer in Donegal County Council in relation to the implementation of group water schemes such as this one. A certain informality of approach was identified. To some extent such informality was inevitable given the composition of the groups and a necessity to obtain rights of way and way-leaves over third parties lands which were often the lands of neighbours or friends. It was clear from the evidence of the senior engineer that on a number of occasions the County Council allowed schemes to proceed where not all the legal details were in place and a practice had developed of dealing with problems as they arose. It was the experience of the senior engineer that in all cases, except this one, those problems were ultimately resolved. It appeared that to some extent the schemes operated and depended upon the hope and expectation that local landowners would be supportive and co-operative and would not block their neighbours from receiving a pure and constant water supply. It is clear in this instance that the organisers of the group scheme, to some extent, proceeded on the basis that they would rely upon the understanding and tolerance of their neighbours and local landowners.

10

At the end of August, 2000 the County Council approved a grant allocation to the Island Roy Group Water Scheme. The members of the scheme thereafter proceeded with considerable speed and by the end of the first week of September, 2000, had identified and employed a contractor, Dan O'Donnell, and had the necessary piping on site by the 6th September, 2000.

11

The pipe which was to run from the main Downings to Carrickart road as far as the causeway was to be on the lands known as The Commonage. It appears, though it is to some extent uncertain, that the initial plans in 1978 had envisaged that the pipe would go down the public road which was in charge and then turn and proceed along the right of way. The evidence which was available to the Court suggested that the Road Section of the local authority were against using the road as it would result in the road having to be re-surfaced and could also cause unevenness in the road surface thereafter due to the nature of the subsoil. Laying the pipes on the roadway would also significantly increase the cost. As a result of those factors the implementation of the scheme proceeded on the basis that the pipe would be laid parallel to the side roadway and to the right of way.

12

The lands known as The Commonage are lands within a special area of conservation for the purposes of the Habitats Directive and permission from Dúchas for the laying of the pipe was required. That permission was obtained on the 6th September, 2000. It is unclear as to whether or not Dúchas was provided with the precise details of where the pipes would be laid. This arises from the fact that there appears to have been an alteration from the initial proposal which was based upon the pipes going along the roadways to the final scheme which placed the pipe work adjacent and parallel to the roadways. It is unclear if Dúchas was made aware of this alteration. The evidence established that alterations in the precise implementation of group...

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7 cases
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    • Ireland
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    • 11 Mayo 2017
    ...of the licence is to provide consent for an action which would otherwise be an offence under the Act. 94 In McKeever v. Hay & Ors. [2008] IEHC 145, Feeney J. held that the laying of pipes across the verge of a public road and the entry onto the lands in the absence of consent amounted to a......
  • McGarry v O'Brien
    • Ireland
    • High Court
    • 12 Diciembre 2017
    ...that can only be refused in exceptional circumstances. In making this argument, they rely on Feeney J.'s decision in McKeever v. Hay [2008] IEHC 145. In particular, it is submitted that no relevance can be found in the responsible party's willingness and ability to pay damages. In this reg......
  • Farrell v Promontoria (Aran) Ltd
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    • 18 Diciembre 2018
    ...those authorities cited by Feeney J. in the case of McKeever v. Hay and Ors and (by Order) the County Council of the County of Donegal [2008] I.E.H.C. 145 when he in turn quotes from the decision of Keane J. in Keating & Company v. Jervis Shopping Centre [1997] 1 I.R. 512, where he stated......
  • Eustace v The Lord Mayor, Aldermen and Burgesses of Drogheda Borough Council
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    ...a reading of the judgment suggests to me that this was almost akin to an award of nominal damages. The other case was Mc Keever v. Hay [2008] IEHC 145, (Unreported, Feeney J., 8th May, 2008), where an award of €7,500.00 was made by the High Court. Having regard to the interactions between t......
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