O'Shea v Tudor Homes Ltd
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MacMENAMIN |
| Judgment Date | 17 December 2004 |
| Neutral Citation | [2004] IEHC 438 |
| Docket Number | 476 $P/2004 |
| Court | High Court |
| Date | 17 December 2004 |
[2004] IEHC 438
THE HIGH COURT
DUBLIN
NORTON A TREASTISE ON DEEDS 2ED 1928 50-55
THROGMORTON v TRACEY, SUB NOM THROCKMERTON v TRACY 1558-1774 AER REP 168 2 DYER 124A 1 PLOWD 145 75 ER 222
MONEYPENNY v MONEYPENNY 1861 9 HCL 114
MEREDITH, IN RE EX PARTE CHICK 1879 11 CD 731 41 LT 246
NORTON A TREASTISE ON DEEDS 2ED 1928 63
WOLSTENHOLME & CHERRY'S CONVEYANCING STATUTES 11ED 1927 129
CONVEYANCING ACT 1881 S58 (UK)
ST LUKE'S HOSPITAL BOARD v MAHON UNREP HIGH COURT MURPHY 18.6.1993 1994/7/1832
BALLARD'S CONVEYANCE, IN RE 1937 CH 473 1937 2 AER 691 53 TLR 793
MR. JUSTICE MacMENAMIN: The Plaintiff in these these proceedings is a widow and resides at Winfield, Lehaunstown Lane, Cabinteely in Dublin. The Defendants are a limited company engaged in property development, having their registered address as Lonsdale House, Avoca Avenue, Blackrock, County Dublin.
The matter comes before the Court by way of a special summons in the matter of the construction of a deed of conveyance dated 23rd October 1963.
The circumstances in which this relates to the Plaintiff and the Defendant are set out below.
By deed of conveyance dated 23rd October 1963, to which I will herein after refer to as the "Kitching deed", made between Frank John Lionel Rourke, hereinafter called the vendor of the one part and John Metcalfe Kitching, hereinafter called the purchaser of the other part, the vendor covenants as follows at the fifth schedule, Clause 2:
"For a period of 50 years from the date of these presents (sic.) to limit buildings on the lands retained by the vendor lying on the eastern side of the lands hereby assured as follows: "
a A. No house to be erected on a site less than one acre.
b B. All sites to have a frontage of at least 150 feet to Lehaunstown Lane.
c C. All sites to have access to a said frontage."
The lands retained by the vendor in that deed are the lands shown coloured blue on the map annexed to this judgment.
The Plaintiff is a successor in title to the purchaser in this deed, i.e. she is successor in title to John Metcalfe Kitching. The Defendant is a successor in title in part with respect to the lands retained by the vendor in the said deed.
The Plaintiff asserts that the said covenant affects the Defendant's title, which the Defendant denies. The question of construction which arises under the Kitching deed is whether the Defendant's lands being part of the land "retained by the vendor lying on the eastern side of the lands hereby assured" is affected by the said covenant.
As is deposed during the affidavit of John Walsh Solicitor, who swore the affidavit on behalf of the Plaintiff, issues were joined on foot of a letter which was written by John Walsh and Co. to Messrs. Matheson Ormsby Prentice solicitors for the Defendant, on 16th September 2004. This letter referred to a brief telephone conversation which had taken place between the two firms and referred to a perceived difficulty with Tudor Homes' title being developed by them at Cabinteely, Lehaunstown.
As is explained in the letter, the Plaintiff's title derived partly from fees simple conveyed from Córas Iompair Éireann after the closure of the old Harcourt Street line, delineated in brown on the map, and partly from the Kitching deed made between Frank John Lionel Rourke and John Metcalfe Kitching.
Mr. Walsh's letter goes on to state that it would be noted that at the time of the conveyance, the vendor, Mr. Rourke, owned a large tract of land to the east and south of Brennanstown Road down to Lehaunstown Lane and, in conveying the portions coloured green and brown to Metcalfe/Kitching, became subject to the covenants of the 5th schedule to that deed, whichinter alia severely restricted the development for an ensuing period of 50 years, i.e. to 23rd October 2013 on the bulk of Mr. Rourke's remaining lands, of which the Defendant's lands form part.
The letter goes on to state that as far as the Plaintiff's solicitors were aware, the lands having the benefit of this restrictive covenant, i.e. the lands coloured green on the map attached to the Kitching deed, are at this time in the separate ownership of the Plaintiff and one other owner, who had transpired in the course of the hearing to be Treasury Holdings Limited; who while admittedly enjoying the benefit of the restrictive covenant for their portion of the green lands also owned substantial additional adjoining lands detrimentally affected by the restrictive covenant.
I understand that the land held by Treasury Holdings is to the south of the blue lands which are the subject matter of these proceedings.
The letter goes on to state that: "while researching the scale and effect of the restrictive covenant on surrounding lands for the purpose of possibly negotiating a sale to this other owner that senior counsel was briefed and his unequivocal opinion obtained to the effect that the portion of the Tudor Homes land lying to the east of Lehaunstown Lane, which are coloured blue in the Kitching deed, are adversely affected by the restrictive covenant."
The letter goes on to state that "it has come to the Plaintiff's attention that the Defendants are building or proposing to build on some of the lands affected by the restrictive covenant in breaches of same. Further, in view of the fact that the marketing of these dwellings is imminent it was felt incumbent to contact the defendants immediately "to enquire whether they are aware of the situation and to seek your comments or proposals in relation thereto.
The penultimate paragraph of the letter states:
"From our perspective it would seem that in order to clear up the problem you would need to secure from our clients and her neighbour a release from the restrictions imposed on your client's lands by the covenants contained in the 5th schedule of the Kitching deed."
A number of points arise from this letter. These are:
2 A. The letter at that point did not state that Treasury Holdings were the other owner referred to.
3 B. The covenant didnot actually refer to the lands lying to the east of Lehaunstown Lane. In fact, the covenant in question refers to the land retained by the vendor lying on the eastern side of the lands hereby assured.
4 C. Quite clearly the development programme upon which Tudor Homes had embarked was far advanced by September 2004. Indeed the point of marketing the developed properties had almost been reached.
This letter of 20th September 2004 was met by a response from Matheson Ormsby Prentice which contended that the covenant in question was stated to relate to the lands retained by the vendor in the Kitching deed lying to the eastern side of the lands assured. It went on to point out that the lands being developed by Tudor Homes are to the north of the lands assured by the Kitching deed. Accordingly, it contended the covenant, even if it were an enforceable restrictive covenant, did not affect the Defendant's land.
In response to the grounding affidavit sworn on behalf of the Plaintiff, the contents of which have been rehearsed above, there were two affidavits put in on behalf of the Defendant. The first of these is the affidavit of John Fleming, Architect, of 8/11 Baggot Street, which exhibits a number of maps which are of assistance in more clearly identifying the issues in question. (See in particular Exhibits JF5 and JF6.)
The latter of the two maps conveniently sets out the boundaries of the land in question; the area of the current development and also a number of developments which have taken place subsequent to the making of the deed in 1963.
The affidavit also states that the lands held by the Defendant are in fact held by Yeoman Investment Holdings Limited. This company was by consent added as a Defendant to the proceedings in the course of the application. I understand that the two companies are in common ownership and Yeoman Investment Holdings has undertaken to transfer its interest in the lands at issue to the Defendant.
In order to understand the matters in issue it may now be convenient to revert back to the map appended to the judgment and to the deed. The lands which are stated to have had the benefit of the covenant are those coloured green and brown on the map annexed to the Kitching deed. That portion which is brown was originally the property of CIE and was part of the old railway. Mr. Fleming also exhibits at JF1 a map which illustrates the respective differences between the boundaries of the green land and that owned by Tudor, being 280 metres and also the distance from the Plaintiff's property to the Tudor property, being 380 metres.
Mr. Fleming states that the Defendant's lands are separated from the Plaintiff's lands by Lehaunstown Lane and by the Druid Valley and Cabinteely stream. He exhibits a series of photographs which illustrates the position and also describes the Defendant's lands to the north as being back land in character, bounded by residential developments. The Plaintiff's lands were agricultural in character and have few dwellings or other developments adjacent. It is possible that the area will be the subject matter of considerable development in the next few years. Mr. Fleming also describes certain natural boundaries dividing the two lands, including the Druid Valley, containing the Cabinteely stream, and the tall granite walls running out along Lehaunstown Lane as being natural features which divide the two lands.
He states that the Defendant's land and that of the Plaintiff have no...
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