Thomas Condron v Galway Holding Company Ltd and Danmar Construction Ltd and Stephen Treacy and Maureen Treacy

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Máire Whelan
Judgment Date30 July 2021
Neutral Citation[2021] IECA 216
Docket NumberAppeal Number: 2018/305

[2021] IECA 216

THE COURT OF APPEAL

Whelan J.

Collins J.

Pilkington J.

Appeal Number: 2018/305

Between/
Thomas Condron
Respondent
and
Galway Holding Company Limited and Danmar Construction Limited and Stephen Treacy and Maureen Treacy
Appellants

Presumption – Findings of fact – Credible evidence – Appellants seeking to install a footpath – Whether there was any credible evidence to support the findings of the trial judge

Facts: The appellants, Galway Holding Company Limited, Danmar Construction Limited, Mr Treacy and Ms Treacy, appealed to the Court of Appeal against the decisions of McDermott J delivered on 17 April 2018 (the principal judgment) and 19 June 2018 (the costs judgment) and order made on 26 June 2018 wherein the appellants were ordered to restore the grass verge on the southern side of Seamount Road for the length of the road-facing boundary of the property of the respondent, Mr Condron, to reverse any changes which they had effected to same and to pay the respondent €10,000 in damages for trespass. The respondent was awarded costs at the Circuit Court scale with a certificate for Senior Counsel. The appellants contended that there were five discrete issues to be addressed by the court: (1) whether the respondent’s evidence of carrying out acts of maintenance of the grass verge and/or hedge is capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way; (2) whether the assertion of ownership by the respondent in terms of installing kerbing/cobble-lock at the entrance to his property and the adjacent property, which was in the ownership of his sister, in the area of the grass verge is capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way; (3) whether (a) the evidence that maintenance by Fingal County Council of the hedge along Seamount Road was only sporadic and/or (b) the fact that evidence of their maintenance of the grass verge was minimal and non-existent for a period of eight years prior to the date of the hearing are capable of rebutting the hedge to hedge presumption; (4) whether there were certain matters of evidence which the High Court ought to have taken into account as supporting the view that a right of way existed over the grass verge or which tended to support the view that it had been taken in charge, but were not considered to be relevant and/or were not given any weight by the trial judge; (5) whether the court erred in law in failing to take into consideration the lack of credibility of the respondent’s evidence particularly in the light of the failure to disclose significant matters in the context of the ex parte application brought by the respondent for injunctive relief. The respondent contended that the key issue in this appeal was whether there was any credible evidence to support the findings of the trial judge and if so, the court was bound by those findings.

Held by Whelan J that the court was bound by the findings of fact made by the trial judge when they were supported by credible evidence. Whelan J held that there was ample cogent evidence before the trial judge which entitled him to find on the facts that the respondent had rebutted the hedge to hedge presumption. Whelan J held that the presumption - insofar as the disputed grass verge was concerned -that the entire width between the hedges was subject to a public right of way and was part of the public highway and had been taken in charge was rebutted by the respondent. Whelan J noted that no witness came forth to testify that they had ever personally walked upon the disputed grass verge as a public way or footpath at any time. Whelan J held that any taking in charge by Fingal County Council or its predecessor could extend only to the subsisting public right of way or roadway. Whelan J held that the appellants were not entitled to install a footpath which incorporated the disputed grass verge.

Whelan J held that the appeal would be dismissed. As regards this appeal, Whelan J held that it was appropriate that the appellants pay the costs of the respondent when ascertained.

Appeal dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 30th day of July 2021

Introduction
1

. This is an appeal against the decisions of McDermott J. delivered on 17 April 2018 (“the principal judgment”) and 19 June 2018 (“the costs judgment”) and order made on 26 June 2018 wherein for the reasons set out in the principal judgment the appellants were ordered to restore the grass verge on the southern side of Seamount Road for the length of the road-facing boundary of the respondent's property (“the disputed grass verge”), to reverse any changes which they had effected to same and to pay the respondent €10,000 in damages for trespass. For the reasons set out in the costs judgment, the respondent was awarded costs at the Circuit Court scale with a certificate for Senior Counsel.

2

. The background facts are set out in significant detail in the judgments of the High Court and, apart from the key issues of relevance in this appeal, are not rehearsed in this judgment.

19 April 2016
3

. The precipitating event which led to the institution of the within proceedings occurred on the morning of 19 April 2016 when workmen retained by the appellants acting on foot of a road opening licence granted by Fingal County Council moved onto the disputed grass verge in front of the respondent's home and without notice to the respondent removed the verge — along with some cobble-lock surface and concrete kerbing previously installed by the respondent — and proceeded to incorporate same into a footpath which was laid out as part of the accessway to service the appellants' Seamount housing development. The respondent immediately sought interim interlocutory injunctions.

4

. The trial judge heard the case over eleven days in February and October 2017.

5

. The claim of the respondent was succinctly characterised by the trial judge as follows:-

“…The plaintiff claims that since 1952 the grass verge abutting the road surface has always been treated by himself and his family members as their property and no other party has lawfully entered upon it for the purpose of maintenance or otherwise. He denies that the grass verge has been taken in charge by the local authority, Fingal County Council.” (para. 2 of principal judgment)

6

. The respondent denied that the disputed grass verge had ever been taken in the charge of the local authority. The trial judge observed at paras. 31 and 32 of the principal judgment:-

“The plaintiff claims that while the map attached to the deed of conveyance of 1952 from which he derives his title does not include any portion of the road, the boundary of the lands are indicated by a hedge. The plaintiff claims that he enjoys a presumption that his ownership of land extends to the middle of the road running alongside his property; a presumption which the defendants have not rebutted.

The plaintiff also accepts that a portion of the area beyond the hedge was taken in charge by the local authority and acknowledges that there is a presumption that a roadway, if taken in charge, is normally to be regarded as taken in charge from hedge to hedge. It is accepted that this presumption applies to the roadway on Seamount Road. However, counsel for the plaintiff submits that the facts necessary to give rise to this presumption must be proved by the person who is alleging that the lands have been taken in charge. The plaintiff concedes that the blacktop surface of the road was taken in charge of the county council but maintains that the grass verge was not and that there is no or no sufficient evidence to establish that it was.”

7

. Fingal County Council was not a party to the proceedings. No application was brought that they be joined as notice parties or as co-defendants.

Seamount Road
8

. Seamount Road, Malahide, Co. Dublin appears on maps dating from 1845. It is a cul de sacsituate off the R124. The Condron and Treacy families reside at the furthermost end of the cul de sac from the R124. The respondent's property is situate on the southern side of the road. The title is unregistered. It was acquired by the respondent's father as part of a land exchange transaction with Baron Talbot de Malahide and others on foot of a deed of conveyance dated 21 April 1952. The respondent inherited the holding, which operated as a farm, in or about 1979 and constructed a dwelling house wherein he resides. He has lived on the road since 1952 and is now retired.

9

. Seamount Road is considerably wider where it commences at the turnoff from the R124 road and narrows progressively along its length, particularly as it approaches the terminus or dead end of the cul de sac where the respondent's and appellants' properties are situate.

10

. Seamount Road dead-ends at the entrance to Seamount House which is situate on extensive grounds. The third and fourth appellants (the Treacys) purchased the property in 1978. It has a common boundary with the respondent's property. The third named appellant, Mr. Treacy, now deceased, was a property developer and builder.

11

. Mr. Treacy made a number of unsuccessful planning applications in respect of the Seamount lands including in 1997 for a residential development. Again in 2003, permission was refused for a residential development on the north-western part of the Seamount site. The reasons for refusal related, inter alia, to traffic congestion on Seamount Road ( per Inspector's Report, An Bord Pleaná la, 16 March 2010).

12

. The earlier planning applications of 1997 (F97A/0512) and 2003 (F03A/0076) were, as the trial judge observed:-

“…refused for reasons including the unsuitability of Seamount Road to service such a development and...

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