Smyth v Fenelon and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Oisín Quinn
• Judgment Date: 29 September 2023
• Neutral Citation: [2023] IEHC 536
• Court: High Court
• Docket Number: [Record No. 2022/2199P (2022/85COM)]

Between

Pamelia Smyth

Plaintiff

and

Laurence Fenelon and Lorraine Thornton

Defendants

[2023] IEHC 536

[Record No. 2022/2199P (2022/85COM)]

HIGH COURT

COMMERCIAL

JUDGMENT of Mr. Justice Oisín Quinn delivered on the 29 ^th day of September, 2023

Introduction

1 . The issue in this case concerns the extent of a right of way over a laneway in Ballsbridge, Dublin. The right of way is the subject of an express grant contained in a Deed of 30 September 1955 made between, amongst others, the parties' predecessors in title.

The locus of the Right of Way

2 . The laneway is approximately 14ft wide and runs behind five houses on the Merrion Road, being the even numbers from 116 to 124. These are substantial properties with reasonably long back gardens. The laneway is wide enough for vehicular access, but it would be difficult for two vehicles to pass each other and any normal size vehicle would not be able to turn. At its north-western end, behind number 116 Merrion Road, the laneway by means of gates opens out on to a public roadway called Shrewsbury Park. This road in turn leads out on to the Merrion Road emerging between numbers 116 and 114 Merrion Road. The south-eastern end of the laneway at the rear of number 124 Merrion Road is a dead end. The laneway is effectively a cul de sac. As one enters the laneway through the gates at its junction with Shrewsbury Park there are walls running down each side and a wall at the end. On the left-hand side there is a garage entrance built into the wall to facilitate access to a garage that serves a house on Shrewsbury Park and a house in the Shrewsbury Park estate (a private gated residential development). On the right-hand side (from the perspective of someone standing at the Shrewsbury Park entrance) there are rear entrances in the wall into the Merrion Road houses. Accordingly, if one emerged through one of the rear entrances of the Merrion Road houses on to the laneway, one would essentially turn left to travel along the laneway and pass out through the gates leading out on to the Shrewsbury Park road and from there one could turn left and emerge out on to the Merrion Road, a significant public roadway heading northwards into the city and southwards towards Blackrock. In addition to the laneway, the Shrewsbury Park public road gives access to a number of houses on Shrewsbury Park itself and access to two private gated residential developments, called ‘Shrewsbury’ and ‘Shrewsbury Park’. These developments were built on a large site that was originally contained in a 1945 Deed and which lies between the Merrion Road and the railway line running between Sydney Parade and Sandymount and accordingly the Shrewsbury Park public road remains effectively the only way ‘out’ to the wider public road network which is accessible once one emerges out onto Merrion Road.

The parties

3 . The Plaintiff owns a house built in the back garden of number 118 Merion Road and she has a rear entrance out on to the laneway. The Plaintiff's property was built in the late 1990s and is called Haylands and it is occupied by the Plaintiff's brother-in-law and his wife. The Plaintiff is a successor in title to one of the grantees of the right of way contained in the 1955 Deed. Haylands also encompasses land purchased from number 116 Merrion Road which facilitates a generous direct entrance out on to the Shrewsbury Park roadway. As a result, the owners of number 116, having sold a portion of their back garden many years ago, no longer have a boundary with the laneway or any entrance out on to the laneway itself. However, there is also a house built in their back garden which has direct access out on to Shrewsbury Park since the Shrewsbury Park public road passes between numbers 116 and 114 Merrion Road, and accordingly one entire side boundary of 116 Merrion Road abuts Shrewsbury Park. The Defendants own and live at number 120 Merrion Road and also own the laneway. Number 120 abuts on one side number 118 and Haylands, and on the other abuts Number 122 and together with number 124 each of these houses also has a rear entrance out on to the laneway.

Background to the proceedings

4 . The Plaintiff claims that the right of way granted to her by virtue of the 1955 Deed extends over the entire length and width of the laneway running from Shrewsbury Park to the wall at end of the far boundary of number 124 Merrion Road. The Defendants on the other hand, while accepting that the 1955 Deed granted a right of way over the laneway to the Plaintiff's predecessor in title, say that the extent of the right of way is limited to a right of way between the Plaintiff's rear entrance onto to the laneway and Shrewsbury Park at the north-western end of the laneway and that there is no right to emerge on to the laneway and to turn right and travel to the south-eastern end of the laneway (which is behind number 124) and which is a dead end, even if the Plaintiff were doing so with the intent of doubling back on herself and re-passing her rear entrance with the ultimate purpose of emerging out on to Shrewsbury Park public road.

5 . The context to the proceedings is that Defendants are proposing to sell the laneway and a portion of their back garden at number 120 to a developer who is in a position to acquire, or has also acquired, number 122 Merrion Road and a portion of the back garden of number 124 Merrion and has a planning permission from earlier in 2023 from An Bord Pleanala to build a development of eight townhouses in the back gardens of numbers 120, 122 and 124 Merrion Road and to demolish and build a new house at number 122 Merrion Road together with a new access road through the site of number 122 Merrion Road which will service the eight new townhouses and provide vehicular access between the townhouses and the Merrion Road. Accordingly, it is not envisaged that the townhouses will have vehicular access to and from Shrewsbury Park along the laneway, rather they will use the new roadway to be built on the site of 122 Merrion Road to get access out on to the Merrion Road. The laneway it seems would be used for more limited rear access to the new townhouses for bikes and refuse and garden waste removal and such like. Nonetheless, this proposed development will impact the laneway somewhat behind numbers 120, 122 and 124 Merrion Road. However, the Plaintiff and her residents of Haylands will still be able to emerge from their rear entrance on to the laneway, turn left and emerge out on to Shrewsbury Park. This is aside from the fact that Haylands, by virtue of the acquisition of a portion of the rear garden of number 116, has its own direct vehicular and pedestrian gates directly out on to Shrewsbury Park. Nonetheless, there is no case made by the Defendants that the right of way has been abandoned or extinguished. In addition, the developer was not a party to these proceedings and there was no case made as to whether the proposed development might amount to a substantial interference in the Plaintiff's right of way. The Plaintiff's brother-in-law was the principal witness called on behalf of the Plaintiff, who did not herself give evidence. He had objected unsuccessfully to the proposed development and in addition had, in the past, sought money from the Defendants' predecessors in title in return for co-operating with any proposed development in the back gardens of the other Merrion Road houses which backed onto this laneway. At that stage it may have been envisaged that the laneway might have needed to be widened to provide comfortable vehicular access to any new houses to be built in the back gardens of 120, 122 and/or 124 Merrion Road. The owner of Haylands might have been required to convey some land or grant a right of way over her property in such a scenario. Accordingly, there is nothing necessarily inappropriate about such a stance being adopted and the Plaintiff's brother-in-law admitted he had sought money from the Defendants' predecessor in that regard. However the new development contains the proposal to build an access road to the new townhouses through number 122 Merrion Road. Accordingly, co-operation from the Plaintiff (or her brother-in-law) was not strictly required. There was disputed evidence as to whether the Plaintiff's brother-in-law had demanded money from the Defendants, from other neighbours and indeed from the developer (who claimed one of the new houses had been demanded) but ultimately it is not necessary to resolve those disputes to determine the issue in the case, namely the extent of the right of way, which in turn requires the interpretation of the 1955 Deed.

Law relating to the interpretation of an express grant of the Right of Way

6 . It is well settled that the overarching principle to be applied in interpretating a legal contract such as one containing an express grant of a right of way is to seek to ascertain the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation they were in at the time of the contract.

7 . In addition to the foregoing general principle, the case law and leading texts (see Analog Devices B.V. v Zurich Insurance Company [2005] 1 IR 274; I.C.S. v West Bromwich B.S. [1998] 1 WLR 896; Gale on Easements 21 ^st Edition paras. 19.18 et seq.; Bland on Easements, 3 ^rd Edition, paras. 10.04 et seq.; and Law Society v MIBI [2017] IESC 31) identify a number of further interpretative guides and subsidiary principles, the most relevant of which are as follows:-

• (i) the ‘background knowledge’, or as it is sometimes referred to, the ‘matrix of fact’, includes anything which would have affected the way in which the language would have been understood by a reasonable person;

• (ii) evidence of previous negotiations and declarations of subjective intent are not admissible;

• (iii) the...