Walsh v Walsh
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 01 June 2018 |
| Neutral Citation | [2018] IEHC 401 |
| Docket Number | [2017 3490 P] |
| Court | High Court |
| Date | 01 June 2018 |
[2018] IEHC 401
THE HIGH COURT
Creedon J.
[2017 3490 P]
AND
Easement – Rights of way – Injunction – Plaintiff seeking an injunction prohibiting and restraining the defendants from trespassing upon Victoria Lane – Whether an easement arose in equity
Facts: The plaintiff, Mrs Walsh, applied to the High Court seeking a number of declarations and orders against her husband, Mr Walsh (the first defendant), his business partner, Mr Archibold (the second defendant) and Promontoria (Aran) Ltd (the third defendant): (1) a declaration that the defendants have not acquired and do not enjoy any right of easement for electricity, gas, water or in respect of any services under Victoria Lane, a laneway running along the side of 7 Victoria Road, Rathgar, Dublin 6; (2) a declaration that the defendants have not acquired and do not enjoy any rights of way over Victoria Lane, giving access to or egress from the three dwelling houses constructed on the premises known as the Orchard, to and from Victoria Road via Victoria Lane; (3) a declaration that the plaintiff is entitled to remove and otherwise render inoperable any electricity, gas, water, or other services installed in or under the premises Victoria Lane by the defendant; (4) an injunction prohibiting and restraining the defendants or each or any of them, their servants or agents from trespassing upon Victoria Lane or any part thereof; (5) an injunction restraining the defendants or each or any of them, their servants or agents from using the services now in and under Victoria Lane. The third defendant counterclaimed for: (1) a declaration that the third defendant and the owners of number 3, 4 and 5 Victoria Lane are entitled, for the benefit of the said premises, for themselves, their servants, agents, and licensees at all times with and without vehicles to pass and re-pass over that part of the lands comprised in Folio DN 147858 L, known as Victoria Lane and the free and uninterrupted passage of services below the said laneway; (2) an order for the registration of such rights as a burden on Folio DN 147858 L; (3) alternatively, a declaration that the plaintiff is estopped from denying the right of the third defendant or the owners of number 3, 4 and 5 Victoria Lane, for the benefit of the said properties for themselves, their servants, agents, and licensees at all times with or without vehicles to pass and re-pass over that part of the lands comprised in Folio DN 147858 L, known as Victoria Lane and a free and uninterrupted passage of services below the said laneway; (4) a declaration that any rights held by the plaintiff which are not admitted, can be exercised only by the advance of a financial claim by the plaintiff against the first and second defendants; (5) further or other relief and costs.
Held by Creedon J that the plaintiff through her representations and acquiescence, fostered a reliance in the first and second defendants and encouraged them to act to their detriment; she was, at all times, fully aware that the Orchard site was unsaleable without a right of way over the laneway. Creedon J held that it was clear that the plaintiff's solicitor worked to trace the previous owner of the laneway for the benefit of the development site as well as 7 Victoria Lane. Creedon J found that the plaintiff knew of her husband's plans for the site and of the site's requirements vis-à-vis rights of way and conduit. Creedon J held that she was therefore estopped from denying the third defendant or the owners of number 3, 4 and 5 Victoria Lane, for themselves, their servants, agents, and licensees, at all times with and without vehicles to pass and re-pass over that part of the lands comprised in Folio DN 147858 L, known as Victoria Lane, and free and uninterrupted passage of services below the said laneway, and therefore, found that an easement arose in equity. Creedon J found that the plaintiff through her representations and acquiescence, was estopped from denying the third defendant or the owners of number 3, 4 and 5 Victoria Lane, for themselves, their servants, agents, and licensees, free and uninterrupted passage of services below the said laneway, and therefore, found that an easement arose in equity.
Creedon J held that she would refuse the plaintiff's claim against the defendants and accede to the third defendant's counterclaim.
Application refused.
In these proceedings, the plaintiff, Irene Walsh, is seeking a number of declarations and orders against her husband, Gerard Walsh ('First Named Defendant'), his business partner, John Archibold ('Second Named Defendant') and Promontoria (Aran) Limited ('Third Named Defendant').
On the 19th December, 2006, the first and second named defendants, Messrs Gerard Walsh and John Archibold, purchased from a Mr. George Corcoran, a site (formerly known as 'The Orchard') behind 7-12 Victoria Road, Rathgar, Dublin 6. The first and second named defendants purchased the site with borrowings from EBS Building Society. Sole access to the site exists over a laneway ('Victoria Lane') running along the side of number 7 Victoria Road.
On the 5th of February, 2008, planning permission was secured by the first and second named defendants to build three houses on the site.
On the 7th of March, 2008, loan approval was obtained by the first and second named defendants from Ulster Bank Ireland Limited. The total borrowings amounted to €3.875 million; €1.075 million to refinance the EBS loan and €2.8 million to build the aforementioned houses.
By deed of mortgage, dated the 25th July, 2008, the first and second named defendants signed a mortgage in favour of Ulster Bank on the condition that their solicitor provide a Certificate of Good and Marketable Title and that the mortgagees gave the Bank a first legal charge.
By the end of 2009, three houses were constructed on the site by the first and second named defendants. Access to the three houses is over Victoria Lane and services are laid under Victoria Lane. The houses were not sold but were rented. The three houses are now known as 3, 4 and 5 Victoria Lane.
On or about the 14th of October, 2011, Irene Walsh, the plaintiff agreed to purchase, from one Ground Rent Assurances Ltd, the superior long leasehold title to the Walsh family home at 7 Victoria Lane, and also the laneway itself, running from the roadway to the Walsh family home and onwards to the site.
Irene Walsh was registered as owner of the superior long leasehold title to 7 Victoria Lane and the laneway itself, as outlined on the folio map DN 147858L, on the 18th of November, 2014.
The interest of Ulster Bank Ireland Ltd is now held by the third named defendant by virtue of an assignment dated 12th March, 2012. Following demands for repayment of the loan, the third named defendant, pursuant to the provisions of the Mortgage, appointed joint receivers over the property, by Deed of Appointment dated the 23rd of August, 2016.
After the appointment of receivers, the plaintiff issued High Court plenary proceedings. Those proceedings were not served by the plaintiff, but a lis pendens was registered against the property.
The instant proceedings were issued on the 19th of April, 2017. At the opening of the hearing, the court was informed that the first and second named defendants had not entered a defence, that they would abide by the order of the court and their counsel was maintaining a watching brief only.
(1) A declaration that the defendants have not acquired and do not enjoy any right of easement for electricity, gas, water or in respect of any services under Victoria Lane;
(2) A declaration that the defendants have not acquired and do not enjoy any rights of way over Victoria Lane, giving access to or egress from the three dwelling houses constructed on the premises known as the Orchard, to and from Victoria Road via Victoria Lane;
(3) A declaration that the plaintiff is entitled to remove and otherwise render inoperable any electricity, gas, water, or other services installed in or under the premises Victoria Lane by the defendant;
(4) An injunction prohibiting and restraining the defendants or each or any of them, their servants or agents from trespassing upon Victoria Lane or any part thereof;
(5) An injunction restraining the defendants or each or any of them, their servants or agents from using the services now in and under Victoria Lane;
(6) If necessary, an injunction requiring the defendants or each or any of them, their servants or agents to restore the said laneway to its property and former condition;
(7) If necessary, an interlocutory relief in terms of subparagraphs d, e, and f.
(1) A declaration that the third named defendant and the owners of number 3, 4 and 5 Victoria Lane are entitled, for the benefit of the said premises, for themselves, their servants, agents, and licensees at all times with and without vehicles to pass and re-pass over that part of the lands comprised in Folio DN 147858 L, known as Victoria Lane and the free and uninterrupted passage of services below the said laneway;
(2) An order for the registration of such rights as a burden on Folio DN 147858 L;
(3) Alternatively, a declaration that the plaintiff is estopped from denying the right of the third named defendant or the owners of number 3, 4 and 5 Victoria Lane, for the benefit of the said properties for themselves, their servants, agents, and licensees at all times with or without vehicles to pass and re-pass over that part of the lands comprised in Folio DN 147858 L, known as Victoria Lane and a free and uninterrupted passage of...
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