Udaras Eitliochta na hEireann & anor -v- Monks & anor, [2017] IEHC 440 (2017)

Party Name:Udaras Eitliochta na hEireann & anor, Monks & anor
Docket Number:2017 245 P

THE HIGH COURT [2017 No. 245 P.]





JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 7th day of July, 2017.

  1. In these proceedings, the plaintiffs seek injunctions and other relief including a declaration that the second named defendant does not possess any estate, right, title or interest in a property comprised in Folio 2591R of the Register, Co. Dublin, known as “McCabe’s field”. The first named defendant has consented in writing to the making of final orders in favour of the plaintiffs in these proceedings and did not participate in the substantive hearing of the matter before the court. Throughout this judgment, Mr. Mark Monks (“the second named defendant”) shall be referred to as “the defendant”.

  2. Specifically, the plaintiffs seek an injunction restraining the defendant, his servants or agents from preventing, interfering with, impeding, threatening and/or obstructing the plaintiffs and/or their servants or agents from engaging in the construction of the new Air Traffic Visual Control Tower at Dublin Airport and any ancillary or necessary works thereto. They also seek a declaration that the defendant is in breach of an order of the High Court (Kearns J.) made on 10th November, 2003, in the matter of Aer Rianta Cuideachta Phoiblí Theoranta v. Mark Monks [2000 No. 10996 P.] and the plaintiffs seek damages for trespass.

    Factual Background

  3. McCabe’s field comprises some 0.425 acres and is situate adjacent to the boundary of Dublin Airport and close to the Air Traffic Visual Control Tower and associated car park, the fire station and some hangers. McCabe’s field will play an important role in the development of the northern runway and more specifically in relation to the development of the new Air Traffic Visual Control Tower which will service that runway. Planning permission for the new control tower was granted on 12th February, 2010. At no time during the planning process did the defendant lodge any objection or make submissions to An Bord Pleanála or assert any ownership claim to McCabe’s field. On 12th December, 2016, BAM Civil Limited commenced preparatory works on McCabe’s field. Shortly thereafter, the defendant arrived at the field and a dispute took place concerning the ownership of the site. This is the central issue in these proceedings.

  4. On 2nd March, 1928, the Minister for Industry and Commerce was registered as owner of the lands in Folio 2591R. On 14th February, 2007, Dublin Airport Authority was substituted as owner. The lands comprised in Folio 2591R incorporated McCabe’s field.

  5. On 23rd December, 1992, Aer Rianta purchased four parcels of land from Mr. James Monks, the father of the defendant, in consideration of the sum of £340,000.00. The lands purchased were as follows:-

    (i) 42.862 acres being part of the property comprised in Folio DN329 which was commonly used for grazing;

    (ii) outhouses and buildings known as the “Twenty-two cowshed, the Feeding Shed and the Calf Shed” adjacent to Huntstown House which was part of Folio DN329;

    (iii) 0.425 acres being part of Folio DN2591R (McCabe’s field); and,

    (iv) a dwelling house being the property comprised in Folio DN15150 which was across the road from McCabe’s field (hereinafter referred to as “the dwelling house”).

  6. Before Aer Rianta bought the land from Mr. James Monks, the parties to the agreement realised that there was a mistake in Folio 2591R in that McCabe’s field had been included in the folio since 1939. This was known to both Aer Rianta and Mr. James Monks in 1992. Prior to the sale of the lands Mr. James Monks had an established use of McCabe’s field and had intended applying to the land registry to be registered as full owner by long possession. However, when he decided to sell the lands to Aer Rianta, the parties to the sale agreed it was not necessary for McCabe’s field to be included in the deed of transfer as it was already registered in the name of the Minister for Industry and Commerce. Instead, the matter was addressed by way of a statutory declaration dated 23rd December, 1992, in which Mr. James Monks confirmed that he had agreed to sell McCabe’s field to Aer Rianta, that the purchase price had been paid, that he had withdrawn his application for registration in the land registry in respect of those lands and that he no longer had any interest whatsoever in McCabe’s field.

  7. On the same day as the deed of transfer, Aer Rianta entered into a caretaker’s agreement with Mr. James Monks in respect of the lands including McCabe’s field and the agreement ran from 22nd December, 1992, for eighteen months up to 21st June, 1994. The agreement provided that Mr. James Monks would enter into possession “…solely as such caretaker…and not under any contract of tenancy”.

  8. £34,000.00, being 10% of the purchase price, was placed on joint deposit on 24th December, 1992, in the joint names of the parties’ solicitors to be released when vacant possession of the lands was obtained by Aer Rianta.

  9. On 13th May, 1994, Mr. James Monks sought to extend the agreement in respect of the parcels of land from 1st July, 1994. At this time, McCabe’s field was excluded from any new arrangement because of its location. The field is adjacent to the airfield entrance at the Dublin Airport and is close to the IAA Air Traffic Control Tower and associated car park, the fire station and some hangars all contained within the airport complex. Due to its proximity, the lands could be directly incorporated into Aer Rianta’s lands for use and it was envisaged that they would inevitably form part of the development and/or expansion of the airport and its facilities in a way in which the other lands would not.

  10. On 13th May, 1994, Mr. Brian Vaughan, Corporate Property Manager, accompanied by Mr. Paul Pugh visited Mr. James Monks at his request. Mr. James Monks explained that he was still waiting to receive the sale monies from his solicitor and had been unable to make plans to buy a new house. He explained that he was interested in renting the house, outhouses and land at a fair rent from 1st July, 1994. It was agreed that McCabe’s field would be excluded from the new letting and that the old cottage known as McCabe’s Cottage would be vacated and Mr. James Monks would remove any item...

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