Granted & Implied
Cases
Dwyer Nolan Developments Ltd v. Kingscroft Developments Ltd
[1999] 1 I.L.R.M. 141 Kinlen J delivered the 30th day of July, 1998 .
1. Both parties are house builders and developers. The Plaintiff owned land which was part of the Kilruddery Estate originally belonging to the Earl of Meath which is partly in the administrative area of the Bray U.D.C. and partly in the administrative area of the Wicklow County Council. By an agreement in writing dated the 7th January, 1994 and made between the parties hereto, the Plaintiff agreed to sell to the Defendant that part of such lands at Kilruddery, Bray in the County of Wicklow, more particularly delineated on the map annexed thereto, thereon surrounded by a red verge line (hereinafter called “the Defendant’s lands”) but retaining other parts of this land surrounded by a blue verge line (hereinafter called “the Plaintiff’s lands”). The sale was completed on the 6th July, 1995 and the Plaintiff furnished the Defendant a transfer dated the 6th July, 1995.
2. It is alleged by the Plaintiff that under and by virtue of the terms of the said agreement and/or the said transfer, there was accepted and reserved out of the Defendant’s lands in favour of the Plaintiff’s lands a right of way and other easements.
3. It is alleged that the said right of way is a vehicular right of way for all purposes. The Defendant is the owner of the lands in Folio 16366F County Wicklow and the Plaintiff is the owner of the lands in Folio 14183F in the County of Wicklow. A number of issues arose between the parties on the pleadings. However, a motion was brought pursuant to Order 19, Rule 28, of the Rules of the Superior Courts by the Defendant to strike out portions of the Plaintiff’s claim as frivolous and vexatious and as an abuse of the process of the Court and having no reasonable prospect of success. This matter came on a motion before Miss Justice Laffoy who gave a written judgment on the 30th January, 1998. She examined the matter with her usual care and removed a number of matters. She says:-
“The nub of the plaintiff’s case is that the defendant is in breach of the agreement of the 7th January, 1994 and a transfer of the 6th July, 1994 in denying the plaintiff a right of way and in not agreeing and providing for that right of way in the planning application and by not providing for the line of the right of way. The defendant acknowledges that there is a legitimate issue as to the plaintiff’s entitlement to a right of way.”
4. The architects, Fenton-Simons, prepared a drawing for residential developments at Kilruddery in April 1993. It shows a proposed southern cross route and then lays out varying housing schemes to be developed on a phased scale which included lands not purchased by the Defendant. From this proposed southern cross route and along the top of the proposed development there is a road shown on the said map as Road 14. As one enters it from the southern cross route the property on the right is all a wooded area and the houses are positioned on the left. As one proceeds along Road 14 there is proposed road No. 17 to the left and then another proposed road No. 16 to the left and finally another road No. 15 to the left. Road 14 then proceeds to the boundary of the retained land of the Plaintiff. The Defendant subsequently requested the local authority to “rejig” the housing arrangement at the end of Road 14. Now there were to be houses on the junction with Road 15 to the end of Road 14 where it abuts the retained land of the Plaintiff. Thus effectively a portion of the road is now part of a housing development. The result is that the Plaintiff contends that his retained land is effectively land-locked. He was not aware of the application to “rejig” the original plan across the proposed Road 14. The question before this Court is whether or not the Plaintiff has a right of way along Road 14 into his own land or whether it is rejigged with some alternative route which was not specified to the Court.
5. By a letter dated the 16th June, 1997 the Defendant denied and continuously denies that the Plaintiff has a right of way over the Defendant’s lands from the Plaintiff’s lands to the road on the Defendant’s lands. The relief sought at paragraph 3 of the Statement of Claim reads as follows:-
“3. A declaration that the Plaintiff is entitled to a right of way at all times by day and by night with or without motorcars or motor-lorries and all other manner of vehicles howsoever propelled or drawn, laden or unladen to go past and re-pass over and along the lands owned by the Defendant leading to and from the lands owned by the Plaintiff to and from the public road and to a reasonable access to the said public road from the said lands owned by the Plaintiff along such path as may be designated by the Defendant acting reasonably or, in default of agreement, as may be determined by the Court.
4. An injunction restraining the Defendant his servants or agents and all other persons having notice thereof from implementing or carrying out further developments on foot of the said planning permission register reference no. 4460/96 on the said lands at Kilruddery, Bray, County Wicklow.”
6. It is alleged by the Plaintiff that Roads 14 and 15 would have provided the Plaintiff with the necessary access contemplated by the grant of the right of way and would have prevented the said retained land from being land-locked as it now currently stands. The Order of the 24th July, 1996 by Wicklow County Council granted planning permission to the Defendant for the developments of the subject lands comprising 164 houses subject to 23 conditions. The plan on foot of which the said permission was granted provided for no access to the retained lands of the Plaintiff.
7. Firstly, we look at the contract which is dated the 7th January, 1994 in which the Plaintiff sold to the Defendant the lands described as: All That and Those part of the lands of Irishtown, Kilruddery Demesne east, Kilruddery Demesne west and Oldcourt in the County of Wicklow and more particularly delineated in red on the map “annexed to the agreement and transfer. The land is held in fee simple and was sold for £5,583,600”.
8. By a transfer dated the 6th July, 1995 the vendor (Dwyer Nolan Developments Limited) as the registered owner in consideration of the sum of £2,062,800 transferred to the purchaser (Kingscroft Developments Limited) the property for sale with the easements, rights and privileges specified in the Second Schedule thereto excepting and reserving onto the vendor the easements, right and privileges specified in the Third Schedule thereto. In the Second Schedule (dealing with the rights, easements and privileges of the purchaser as successors in title etc.) and the Third Schedule sets out the easements, rights and privileges accepted and reserved out of and over the property for sale to be for the benefit of an appurtenance to the retained property and every part thereof. The first paragraph of each schedule is practically the same except where necessary to adjust the position of the parties. The Second Schedule reads as follows:-
“1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles however propelled or drawn, laden or unladen to go pass and re-pass over and along all roadways and footpaths coloured yellow on the map attached hereto made over or at any time within twenty-one years from the date of this transfer laid over and above the retained property leading from and to the property for sale to and from the public road.”
9. The Third Schedule reads:-
“1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles howsoever propelled or drawn, laden or unladen to go pass and re-pass over and along all roadways and footpaths now laid over or at any time within twenty-one years from the date of this transfer laid over or along the property for sale leading to and from the retained property to and from the public road.”
10. At the time of all these agreements there were no roads at all in the area with which this Court is concerned. Basically on plans submitted to the local authority Roads 14 and 15 both ended at the boundary to the retained land. A subsequent application to “rejig” the plan allowed the purchaser to build houses and thus effectively block any access from Roads 14 and 15 to the retained lands.
11. The only roadway coloured yellow on the map attached to the transfer was the proposed southern cross route. The original planning permission is No. 407/93. Mr. Finnegan who appeared for the Plaintiff argued very forcibly that you must look at the agreement and the transfer and all surrounding circumstances. He argued that there was an express grant under the transfer and an express grant under the agreement and that if the Court held against him on either of those grounds that there was one by implication. There was a grant by way of necessity. He relied on the 2nd Edition of a Treatise on Deeds by Robert F. Norton p. 269 where Sutton J. was quoted as saying:-
“I understand a reservation in its technical sense to be the re-grant out of the subject matter conveyed of something not previously existing, as a rent or an easement. The retention by the grantor of something already existing in the subject matter, as mines and the right to work them, is an exception.” ( Jones -v- Consolidated Anthracite Collieries Limited , [1916] 1 K.B. 123 at p. 135).
12. Roads 14 and 15 were not existing at the time of the agreement or transfer. Mr. Finnegan also relied on Wylie’s Irish Land Law, 2nd Ed., at paragraph 6.058 which is cited with approval in the unreported judgment of Keane J. in Eily Doolan -v- Peter Murray, Elaine Murray, Joan Murray-Cheevers, Bahgat Aziz and Dun Laoghaire Corporation , delivered the 21st day of December, 1993 in Volume 2 of the 1994 unreported cases at p. 000414 and the quotation is at 000444. The quotation from Wylie is as follows:-
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the particular conveyance. In such questions of construction two principles are most relevant, namely, that a grant is in general construed against the grantor and that a man may not derogate from its grant. The first principle means that, in cases of doubt (e.g. over the exact scope of the easement or profit) a grant of an easement or profit will be construed against the grantor in favour of the grantee whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor.”
13. In the judgment of Keane J., (in the following paragraph of the judgment at p. 000444), the word “grantee” is incorrect and should obviously be “grantor”. Keane J. continues:-
“It is also clear that, in considering the extent of the grant, the Court must have regard to all the surrounding circumstances ( Cannon -v- Villiers , (1878) 8 Ch.D. 415).”
14. Mr. Finnegan argues very forcibly that the reservation of a right of way in favour of the Plaintiff is at law the grant of that right of way and will be construed against the Defendant. The authorities cited are to support the proposition that a re-grant should be construed against the re-grantee. He referred the Court to Nickerson -v- Barraclough & Ors. , [1981] 2 All ER 369 at pp. 380-381. He also referred to the Irish case of Maguire -v- Brown , [1921] 1 I.R. 148. Basically the Court must look at the actual agreement or intention of the parties at the time of the severance of the property. He then argues that under paragraph 3 of the Schedule to the transfer, he has the right to construct drains and sewers. It does not expressly confer upon him a right of way. He argued that the map of Road 14 was crossing into his client’s land and he underlines the wording of the clause of the “proposed roads”.
15. In the special conditions in the contract of sale dated the 7th January, 1994 at para. 10, it is provided inter alia:-
“The said lands have been sold to the purchaser subject to the easements, rights and privileges in favour of the vendor as follows:-
(a) The right to pass and re-pass at all times over the proposed estate roads and footpaths.”
16. He argues that one must look at the map showing the proposed estate roads going up to and indeed crossing into the retained lands. There is no definition of estate roads. However, it is reasonable to assume that with the position of the word “proposed” they must be roads and footpaths mentioned in the plan. He argued that the merger of the contract with the transfer and the attitude of the Courts, both at common law and at equity. Under Condition 48 of the contract for sale with the heading “Non-Merger” it was provided as follows:-
“Notwithstanding the delivery of the assurance of the subject property to the purchaser on foot of the sale, all conditions designed to survive completion of the sale and all warranties in the condition is contained which shall not have been implemented by the said assurance and which shall be capable of continuing or taking effect after such completion shall endure and remain in full force and effect.”
17. Wylie takes the view that:-
“This is a very wide provision which should forestall most, if not all, arguments that a party cannot invoke the contract after completion.” (Para. 21.03 2nd Ed. Wylie’s Irish Conveyancing Law).
18. If the Court holds that the contract survives it is then necessary to look briefly at the nature of that right. It is dealt with in Gale (as cited) at p. 76 under the heading ‘Actual Agreement’ where it says:-
‘It appears that an agreement made for valuable consideration for the grant of an easement, or to the effect that some easement shall be exercisable, create in equity a valid easement which can be exercised against the servient party and his successors in title, not being a purchaser for value without notice.'”
19. He then urges the Court that he has in fact a full right of way under the contract and transfer and secondly, that the agreement confers on his client the full right of way albeit in equity only. He urges that it is a specific easement. It relates to the contract and the contract map. It relates to Road 14 and the access to the site owned by him as shown on the map.
20. The third basis on which a grant can arise is a grant implied by circumstances. Basically, both parties were house developers and builders and the map shows the land laid out as the housing estate. The clauses deal with development. The planning permission basically required the retained land to be open space. The Defendant knew that that condition was in and knew that the Plaintiff had appealed it and knew the reason for appealing it. So therefore the Defendant knew of the Plaintiff’s intention to develop the land. Mr. Finnegan then argued in favour of an implied grant on the basis of a common intention that both parties would develop. Finally, he argued on the basis of a grant by way of necessity. The Nickerson case discussed the basis of the doctrine as to whether it was a matter of public policy that the lands should never be left without an access, or it was merely a circumstance which under the ordinary rules the Court would imply a grant. The Nickerson case decided that it is not based upon public policy but on the implied intention of the parties. In the 2nd Edition of Norton p. 287 it is stated that:-
“A right of way of necessity passes as incident to the grant (i.e. without any express words), for without it he cannot derive any benefit from the grant. So it is where he grants the land and reserves the close to himself.”
21. Mr. Finnegan argues that there is an implied re-grant to his clients when he effectively cuts himself off. He argues that the law in the United Kingdom has always differed from that in Ireland. In the U.K., the quality of grant by way of necessity should be that which is sufficient to satisfy the use to which the dominant tenement is put at the date the grant arises. In other words, if I have a field I get a right of way appropriate to the field and no more. However, the law in Ireland has always been different from that. The Court refers to the excellent text by Peter Bland on “The Law of Easements and Profits à Prendre”, 1997 Edition at p. 225 para. 12-20:-
“Once a way of necessity has been established the Court must determine the nature and extent of the right of way. The servient owner may wish to restrict the right to foot passage only, whereas the dominant owner may wish to secure vehicular access. There is a divergence between Irish and English law on the extent of a way of necessity, which has been considered earlier in the context of rights of way. In England it is settled that the extent of the right is limited reasonably necessary at the time of the grant to the circumstances prevailing at the time of the grant, whereas the Irish High Court has held that the extent of an easement of necessity can include a user in excess of that which had been enjoyed prior to the grant of the dominant tenement. In Maguire -v- Brown , [1921] 1 I.R. 148, it was held that the permitted user extends to that which is suitable to the business which the dominant owner might require to be carried out upon the premises”.
22. Mr. Finnegan argues that the Defendant knew the nature of the site and the purposes of the Plaintiff and what it was clear would be required. It must be a right of way of full and sufficient amplitude to fulfil the intention of the parties at the time of the transfer of the land and then he argues you cannot grant a man something and then prevent him from enjoying it. He argues that, generally speaking, a derogation from a grant will result from a physical interference which prevents the enjoyment of that grant. It is however not necessary that the interference should be physical and he relies on Gale (op.cit) at p. 101 where he is quoting from Parker J. in Browne -v- Flower , [1911] 1 Ch. 219. Parker J. was referring to the rule in Wheeldon -v- Burrows , (1879) 12 Ch. D. 31 and then proceeds:-
‘Thus, if the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.'”
23. This can readily be understood in physical terms. However, Gale refers at p. 102 to the case of Harmer -v- Jumbil (Nigeria) Tin Areas Limited , [1921] 1 Ch. 200 in which Lounger L.J. (as p. 225):-
“Described the rule against derogation from grant as ‘a principle which merely embodies in a legal maxim a rule of common honesty’.”
24. It was established that the application of the rule is not confined to physical interference with the land granted. Land was leased with the express purpose that it should be used for the purposes of an explosives magazine and further land was held under a tenancy agreement which permitted the erection thereon of a shed for packing explosives. Subsequently adjoining land was leased to the Defendant company by a lessor who was the successor in title of both the grantor of the lease of the site of the explosives magazine and the grantor of the tenancy of the land on which the shed was sited. The Defendant proposed to erect buildings which would have occasioned the withdrawal of the Plaintiff’s licence for the magazine and packing shed under the Explosives Act, 1875.
25. Mr. Finnegan argued that his clients had access under the planning permission. Once they had completed the purchase of all the phases of the Plaintiff’s lands, the Defendant went and changed the planning. The Defendant then built in accordance with the new planning and had built houses across the area where the Plaintiff was entitled to access.
26. However, he concedes that the Defendant has left a gap through which the Plaintiff may be allowed in if compelled by this Court. There is physical interference by the construction of the houses. The difference is that the sole surviving means of access is across land designated as open space under the planning permission upon which the Defendant has acted. He argues that it is highly unlikely that a road would be permitted across a reserved open space. The result is that his client is left to his land which is of no commercial value. He concedes that if he got a road with planning permission there is then no damage whatsoever to the value of his site and he would be as happy as he would have been had the Defendant complied with its obligations. If he does not get a road through the sole remaining means of access with planning permission then he has a worthless site. He is not looking for damages. He wants that for which he contracted. He argues that in relation to non-physical interference that just as the servient owner so conducted himself so as to prevent an explosives licence continuing hereby applying for planning permission without making provision for the Plaintiff well knowing that he should. The Defendant has equally destroyed the Plaintiff’s land. He argues that there is really only one case in which the impact of the planning code on rights of way is dealt with, that is in the judgment of Keane J. It is very long and complex and to which reference has already been made. That case was decided on the basis of negligent mis-statement even though it was a voluntary disposition to the purchaser.
27. Mr. Finnegan then produced evidence that included proof that the map attached to the contract was signed on behalf of the Plaintiff by Mr. Dwyer and by Mr. Gallagher ultimately on behalf of the Defendant. The open space is owned by the Defendant. The Defendant would not co-operate with the Plaintiff to get an alternative access through this site (which is presently a wooded field).
28. Mr. McGonigal’s submission was based upon the fact that there is no grant of a right of way contained in the document and that one must look at conditions prevailing at the time the land appears to become land-locked. It is not open to this Court or any Court to say that there is a way of necessity which will enable the lands to be developed either as a housing estate or as an industrial estate. He states that the real issue in this case is whether the Plaintiff has properly reserved to himself the right of way which he is now claiming. The vendor could have reserved a right of way by express reservation. He did not do so and cannot therefore now claim that he is entitled to it as a result of implication or necessity. The Court cannot give him something which is not reserved. The Court cannot rewrite this contract or rewrite this transfer to facilitate the Plaintiff. If he wanted to do that it was for himself to do it. It is not for the Court to do it.
29. He argues that where you are effectively severing part of your land and trying to reserve something over it, if you do not do it expressly the vendor has no reservation so that you are then looking at a case where you have a development on the one side and retained land on the other which is land-locked. The Court is being asked to create a right of way which has not been created and to get the purchaser to do something which he was not obliged to do. He argues that the contract that was signed was for undeveloped land and it was so acknowledged it would be undeveloped in the contract. Secondly, although it was signed with the benefit of planning permission, it was not signed subject to planning permission. Thirdly, at the time that the Third Schedule, Paragraph 1, was put in there were no roads laid. The roads we are talking about is roads “to be laid”. He accepted Mr. Finnegan’s explanation in relation to the twenty-one years (to avoid offending against perpetuities). He stresses the point that all of the roads which were to be the subject of that clause had to be laid in the future. There were no roads laid. The easiest thing would be for the vendor to have retained the right of way to the retained lands from the southern cross road. There was no obligation on the purchaser to retain the layout in the planning permission. He could apply to alter it and he did. There were no existing rights. The right created in this contract is a future right. There was nothing there beforehand.
30. There is no attempt in the transfer to make the development of the land subject to the planning permission which had been obtained. There was no obligation on the Defendant to build Road No. 14 in the way in which it had been laid out with the right of way the Defendant is seeking. He argues that the only document which the Court should consider is the transfer.
31. There is no attempt in the transfer to make the development of the land subject to the planning permission which had been obtained. He quotes from the 3rd Edition of Wylie and particularly paragraph 6.058 p. 375 that says:-
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the particular conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that in cases of doubt….. a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant of the grantee will be construed against him in favour of the grantor. The underlying philosophy is that the person who is in a position to dictate the terms of a transaction, by making the grant, cannot complain if a dispute subsequently occurs and he is not given the benefit of the doubt .” (emphasis added)
At 6.059 it goes on:-
“As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land. In this respect the rights are similar to restrictive covenants though it must be emphasised, the principle has nothing to do with the law relating to such covenants. On the other hand, the principle is not confined to the area of easements and profits and may create rights which do not conform strictly with the requirements of easements and profits”.
32. He refers to a very important decision, already cited, in Donal -v- Murray and then he quotes and, I have already cited, Cannon -v- Villiers . He argues that there is merger. He further argues that in circumstances which existed at the time in those documents, there could be no right of way at all because at that stage, the open space was reserved as open space. If one tries to transfer the contract to a date beyond February, 1994 one is supplying the interpretation that did not exist at the time it was signed. Further cases on which he relies are The Corporation of London -v- Riggs , (1880) Ch.D. 798 and Browne -v- Maguire , [1922] 1 I.R. 23.
The Corporation of London -v- Riggs is an interesting case in which the vendor got rid of all the lands save a piece of agricultural land which was entirely surrounded by the lands conveyed but there was no means of access, expressed or implied. The land retained was used for agricultural purposes. The Defendant built tea rooms on the part retained. Lord Justice Jessel M.R., after observing that the point did not appear to be covered by authority, overruled the Demurrer on the ground that a way of necessity must be limited by the necessity at the time of the grant.
“The object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is…..If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes: that is – as in the case I have before me – a man who reserves 2 acres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity: I think it must be limited by the necessity at the time of the grant”.
Maguire -v- Browne, [1921] 1 I.R. 148 is an interesting case. It apparently got to the House of Lords but in all the text books it is inserted as a Court of Appeal decision:-
“The Defendant’s right to use the pass as a way of necessity was limited to such a use as was suitable or necessary for the enjoyment of the moat in the condition in which it was at the date of the original severance of the lands; and that the defendant was accordingly not entitled to use the pass for the purposes of carting felled timber with horses and carts”.
33. The Court was then referred to the unreported decision of Barron J. in Connell -v- O’Malley in which judgment was delivered on 20th July, 1983. This is a complicated case which basically says that you cannot derogate from the grant. The Court was also referred to Donnelly -v- Adams , [1905], 1 I.R. 154 and McDonagh -v- Mulholland , [1931] I.R. 110 which is a Supreme Court decision which considered and distinguished Donnelly -v- Adams . Mr. Finnegan refers again to the modern text book by Mr. Bland and argues that The London Corporation -v- Riggs case is the law in England and that the law in Ireland is as laid out in Maguire -v- Browne . It was appealed to the House of Lords. It was upheld on a technical point. The only reported judgment is the Irish Court of Appeal. It is to the effect that you look at all the circumstances and not just that the use of the lands. I refer again to Mr. Bland at para. 12.17:-
“Ways of necessity do not arise often, as it would be quite inept for a conveyancer to neglect to provide for access. But mistakes happen and are rectified by the implication of a right of way”.
34. Mr. Finnegan does not accept that the right of way is restricted to agricultural purposes. The right of way of necessity is now only a category of implied easements.
35. This is land which was always to be used for developments in the minds of both parties. The intention to apply for permission to develop it was disclosed to the defendants in the planning documents. This evidence is uncontroverted. The retained land was zoned industrial. Mr. Dwyer gave them the decision of Bray U.D.C. and the notice of appeal against that decision which set out the intention to develop these lands. You look at what each of the parties knew and you look at all the contract terms about all the development conditions relating to those and you look at the area itself. These were not two farmers. These were builders. Both knew what they were at. It was so obvious that this was development land. It is clear that now the question of necessity has been brought in under the umbrella of implied easement and therefore you must look at all the circumstances. These circumstances include the fact that it was a builder/purchaser and a builder/vendor. Maps available showed houses and roads running up to the land and that the Defendants, having been given a clear statement in one of the most important documents he had been looking at before signing the contract which concerned itself in many conditions with planning permission. The statement that the vendors proposed is that the retained lands are used for the purpose of an application for permission for industrial use or such other use as they may apply for or are granted. Everyone knew it was development lands. To quote Mr. Bland again at p.225, para 12-20:-
“….. An easement of necessity can include a user in excess of that which had been enjoyed prior to the grant of the dominant tenement. In Maguire -v- Browne , it was held that the permitted user extends to that which is suitable to the business which the dominant owner might require to be carried out upon the premises.”
36. It is suggested that if two builders do a deal over a piece of land, it would be unrealistic to suggest that one does not know what either might do with the land. To suggest otherwise is to live in a world of unreality.
37. In view of the well researched and well argued contentions of both Mr. Finnegan and
38. Mr. McGonigal the Court reserved its judgment.
39. The Court has decided that, in the particular circumstances of this case, and having regard to the divergence of English and Irish Jurisprudence as illustrated by Mr. Bland’s textbook, the Plaintiff was and is entitled to a right of way to his land locked property.
40. It seems to the Court that if both parties applied to the local authority to provide access through the reserved woodland they might resolve this issue. The area for industrial development will bring work and wealth but if sterile will be useless.
41. The Court proposes to adjourn this matter for six months to enable the problem to be resolved. If this solution is not achieved the Court would wish to be addressed on alternative orders in view of the Court’s findings.
Annally Hotel Limited v Nicholas Bergin
High Court
28 April 1967
[1970] 104 I.L.T.R 65Teevan J.:
While beyond any doubt or difficulty judgment must go for the plaintiffs in respect of all the “barricades” erected by the defendant blocking the hotel windows, the case is nevertheless in one respect rather difficult and the difficulty arises on the more important cause of action. I will deal firstly with the more simple issue. These tall iron barricades are a nuisance and a very annoying, serious and damaging nuisance to the plaintiffs and their customers. They create an intolerable noise. There is noise quite frequently but on occasions of strong wind the noise is really extreme. I think it was the defendant himself who referred to it as an “unearthly” noise.
The more difficult issue is that of the easement of light claimed by the plaintiffs and disputed by the defendant. Such an easement must rest in grant and grant must be effected by deed. There is no deed of grant in the present case. Mere standing by while one’s neighbour constructs work depending *65 on easement over an intending servient tenement, particularly when this is done at great expense and in attendant circumstances displaying acquiescence on the part of the occupier of the other land, may have the effect of creating the easement. This, however, certainly when stated in its simpler terms, is not enough from which to imply the grant of an easement of light. When we come to consider the question of whether such an easement has been established without deed of grant much more is involved. It seems to me that if no discussion had taken place between the parties; if, without consultation with the defendant or his predecessor, his father, the plaintiffs had simply gone ahead with their building, they would not yet have acquired any easement of light through the windows overlooking the defendant’s premises notwithstanding mere acquiescence or standing by, by the Bergins. The reason has been succinctly stated by the defendant’s counsel; the defendant would have no right to object as no right of his would be infringed. Hence, it is very different from those cases of building on another’s land or laying conduits on or over another’s adjoining land, or any other case where objection from the adjoining occupant might be expected, or would be maintainable, or the cases of erroneous belief of title.
Where, however, there is an agreement, however informal, to allow a right of light and on the faith of such agreement the person later claiming the easement proceeds, without deed of grant, to plan, erect, and expend money on, his building which, to be serviceable, must have the claimed light, and the other person stands by and allows all this to be done, and particularly if he acquiesces for a considerable time, he will not be permitted to deny the right or rely on the absence of solemn grant.
So far no difficulty is encountered for the law is well established. It is in the region of fact we are confronted with difficulty. In this, as in any other case, agreement must be certain not alone as to its existence but also as to its terms. The agreement set up and relied on was informal and was not reduced to writing but, as in any contract, the Court must be satisfied of the intention of the parties to contract and as to the common intention on contractual terms.
The evidence is, in a sense, one-sided, for we have not the evidence of one of the contracting parties, Mr. Bergin, who has since died.
At first sight, the evidence struck me as somewhat vague, and, I may say, that it required very close examination of the evidence and its implications before I found myself able to come to a firm conclusion.
I am not going to recall all the facts given in evidence. A plan of the proposed building was submitted to the defendant’s father, his predecessor in title; so also was an elevation of the side of the hotel intended to abut on the Bergin property. That elevation showed windows. No objection was taken to these windows. That negative fact is not decisive. At one stage I was inclined to think that the plaintiffs were simply going to rely on the absence of objection to the windows and that they pointedly avoided asking for consent or agreement. It was this factual possibility that created my main difficulty. If the case rested there the right to the easement must fail. But the case goes further.
The submitted elevation showed the position of all intended windows, including two certain windows at a low level, intended to be in the like position and of the like shape and dimensions of two windows in the former building on the site of the intended new hotel. Nothing was said by Bergin senior or his solicitor about these on submission of plans and elevation but on commencement of the work of rebuilding, when the builder had reached the position of lower window opes, Mr. Bergin senior requested an alteration. He asked that the two windows I have referred to be brought to a higher level as he might wish to extend his own premises at that point. Now it is true—and this was relied on by defendant’s Counsel—that the plaintiffs had an easement by prescription in respect of these two former windows and that the Bergin request should be related solely to that fact. The plaintiffs agreed at great inconvenience to themselves to raise these two windows. At this point Mr. Groarke’s evidence is of the utmost importance. He was sent for to discuss the matter of these windows with Mr. Bergin senior. There were present on the site Mr. Bergin senior, and Mr. Quinn. The conversation took place at the windows. Mr. Bergin senior asked that these two windows be raised to a height of eight feet. The building had reached the stage where the opes for these two windows, and the other windows down the corridor, were in position. The conversation related to the windows on Bergin’s side and Mr. Bergin asked Mr. Quinn to raise the two windows at his end to allow Mr. Bergin, should he desire later to do *66 so, to extend his own premises at this point. Mr. Quinn agreed to these windows beingraised to such a height that, if Mr. Bergin should extend his premises, his extension would not block the light of these windows.
The remaining windows were pointed out to Mr. Bergin and he raised no objection to them and was satisfied with their location. The whole point of this discussion was that any erection Mr. Bergin might later construct would cut off the light from these two of the Annally windows. Mr. Bergin wanted the right to build and by requesting to have these windows raised to the appropriate height he was agreeing to a right to light through them from his side. Now as against the point made by the defendant’s counsel that this must be related solely and entirely to an existing ancient light stand three points.
Firstly, attention was called to the location of the remaining windows and Mr. Bergin expressed himself satisfied.
Secondly, although his earlier evidence was not so clear on the point, Mr. Quinn stated, when he was being questioned about the discussions after the first barricades had been erected by the defendant, that he was, in these new negotiations, really trying to buy the right to light. He said:—“We knew under our agreement and were always sure that he could not barricade those windows. We were always certain and sure Mr. Bergin and his son made an agreement when we were building that hotel that he would have nothing to do with those windows.” I accept that evidence. (I should here say that Mr. Quinn says that the defendant was also present at this discussion. Mr. Groarke, the plaintiffs’ solicitor cannot recall if the defendant were present. The defendant himself says positively that he was not.) There is, of course, no positive or rather direct evidence that Mr. Bergin, senior, was at one with him in that. That is of no avail to the defendant for both Mr. Quinn and Mr. Groarke requested that the terms of their agreement be formally put in writing and this Thomas Bergin emphatically declined to do, saying that his word was his bond; and that he was dissatisfied with the high rate of solicitors’ costs.
Thirdly, there is the point I have just alluded to but which is of such intrinsic importance that I place it under a separate heading, that the plaintiffs and their solicitor requested the reduction of the agreement to writing and the other side refused this.
Fourthly, the defendant allowed access of light through the windows of the firstly built portion for a long time, even if very short of what would have created a prescriptive right.
Fifthly, after the first part of the building casement was completed the defendant was disappointed to find that casement rather than sash windows had been fitted and asked two of the directors to have rows of spikes fitted on the sills to prevent opening outwards to full extent of the windows. I infer from this that it was already an understood thing that the plaintiffs were to have the right to access of light and that the defendant was objecting to the spatial trespass caused by full outward opening of the casement type windows. It is true that the defendant qualified this evidence by saying “I have no objection to them having windows if they are openable sufficiently for ventilation but not to open out fully but I object to right to light.” On his own evidence, however, he was not present at the discussion with his father that resulted in the agreement for light charged by the plaintiffs.
Sixthly, the barricades were not erected to prevent an acquisition of a prescriptive right to light. They were erected principally because of the actions of the plaintiffs, in the third and final stage of their development, to which the defendant objected—and I think that perhaps his objection was not altogether unreasonable, certainly it was understandable—and this objection arose particularly because of the collapse of the boundary wall of his garden. He very fairly said that it was that that annoyed him. This is re-inforced by the defendant’s evidence that, when asked to take down the barricades, he said he would if he (Mr. Quinn) would not continue with the other building i.e. the third phase.
Seventhly, the defendant agreed in cross-examination that if the plaintiffs had not carried out the third phase of their development he would not have put up the barri-cades—although again, I must say, he added “but I wasn’t going to give them any right over my property” (by which he meant right of light).
Now it is not a question whether the defendant was going to give a right of light or not. The question is did his father give it? Mr. Quinn says Mr. Bergin senior did *67 give it. The defendant is positive that he, the defendant, was not present on the occasion when it is said such an agreement was come to.
The bulk of the evidence points more to an agreement to grant a right of light by implication rather than by express words. Indeed but for one particular answer by Mr. Quinn which I have already quoted I think the case would be reduced to that. Even then I think I would be led to conclude, but perhaps with some hesitation, that Mr. Bergin, senior, permitted the plaintiffs to proceed in the belief that he was going to permit them have light through their windows on his side of the building.
I accept the proposition that the plaintiffs would not have proceeded with their project to build the hotel unless they were to have the freedom of light through the windows on the Bergin side and I accept also that they acted in the belief that the Bergins would allow them this light. But the fact that the court has evidence of agreement from one side only, the plaintiffs, is the fault of the defendant’s predecessor in title. If the plaintiffs’ desire for writing had been acceeded to the whole thing would be in the clearest terms. The defendant cannot now be heard to set against the evidence for the plaintiffs what he believes to have happened or what he was, or may have been, told by his father.
I hold the right to light established save as to the final expansion of the hot
Donnelly v Adams
Supreme Court of Judicature
Court of Appeal
[1905] 39 I.L.T.R 1
Lord Ashbourne, C.
While negotiations were in progress in 1888 between the defendant and the plaintiff’s father, the latter was told in the course of a conversation with the defendant that the defendant “could not give him a right of way under the circumstances, but would allow him to get in his coals when he wanted.” That conversation was not carried on in technical language, and I can scarcely believe that the word “allow” was either intended or understood to imply nothing beyond a licence revocable at the will of the defendant. Donnelly was told, in effect, that coal was to be brought across the defendant’s land by whatever route the latter might indicate, and so into No. 19 through the back door. In Geraghty v. M’Cann one of the questions left to the jury was whether the right of way was “necessary for the fair and reasonable enjoyment of the premises at the date of the demise.” Similar questions were put in Phesey v. Vicary and Hinchcliffe v. Kinnoul (5 Bing. N. C. 1). I have arrived at the conclusion that the right claimed by the plaintiff to use the back door for certain purposes was reasonably necessary for the enjoyment of the premises, and was also one which an intending purchaser would assume to be granted with them. Mr. Maxwell has argued very strongly that in cases of implied grant of a way which is not a way of necessity in the strict sense of the term, there must be a made and defined way in existence at the date of the grant, but it is quite possible to define a way by reference to its starting point and terminus, and in this case the precise route was not of any importance to Donnelly. Accordingly we allow the appeal, with costs.
FitzGibbon, L.J.
I concur. The shortest way in which I can state the effect of our decision will be to read the draft of the order which we propose to make in this case: “It appearing to the Court upon the evidence and the condition, user, and circumstances of the demised premises and of the adjoining lands, that the lease of Aug., 1888, in the pleadings mentioned, was made by the defendant, Stephen Adams, to P. J. Donnelly, the predecessor in title of the plaintiff, upon the terms that during the continuance of the said lease the occupier of the house thereby demised should have the right to use the door opening from the demised premises into the land in the possession of the defendant, and bounding the said premises on the east, for the purpose of bringing coal for the use of the inhabitants of the said house, with the further right of passing and repassing at reasonable times and in a reasonable manner, with horses and carts, for the purpose aforesaid, across the said land in the possession of the defendant, between the said door and one of the public highways adjoining the said lands of the defendant, over such convenient part of the said lands and through such gate or other convenient entrance thereto from such of the adjoining highways as the defendant should from time to time appoint; and it further appearing that the defendant has wrongfully obstructed the exercise of the right aforesaid by the erection of a wall across the said door—let an injunction issue to restrain the defendant from obstructing the rights defined as aforesaid, and from maintaining the said wall.”
The action of the defendant in closing the door at the rere of the plaintiff’s premises by fixing a bolt and lock on it was absolutely illegal. When the lock was removed by the plaintiff, the defendant then built a wall, and thereby rendered the door absolutely useless, alleging that the door *3 had been used under a revocable licence. The judgment of Barton, J., shows that at the trial the plaintiff simply claimed a right to get access to and from a public highway through the back door. The construction of the plaintiff’s house shows clearly that such a right was reasonably necessary for the user of the house as a private residence—that it was what I may term a way of “qualified necessity.” It is true that a vague or indefinite right cannot arise either from an express or implied grant, but the two essentials to a way— i.e., a defined right of crossing land— are a terminus a quo and a terminus ad quem. The actual line of passage may be changed upon occasion, as in cases where there is a right to cross a field which is sometimes in tillage. The only right which Donnelly sought, and the only right which he acquired, was a right to bring in coal through his back door by whatever way the defendant might point out. To my mind it is impossible to think that he took a lease for so long a term without a binding licence from the defendant, and the subsequent conduct of both parties up to the time of the quarrel over the children trespassing is all in favour of that view.
Walker, L.J.
I concur. The lease of 1888 contains a covenant to use the plaintiff’s house as a residence only. The plan of the house is sufficient to show that a back entrance for bringing in coal is necessary for the convenient use and enjoyment of the premises. In my opinion the evidence as to the user of the door and the conversation which took place when the letting was made does not create, but certainly supports, an inference of a binding contract between the parties by showing what was, in their intention, to pass under the demise.
Holmes, L.J.
I concur. [His Lordship having referred to the history, character and construction of the plaintiff’s house continued.] Anyone looking at the house would see at once that the door in front was not suitable for the purpose of bringing in coal, and that the back door was evidently intended to be so used. I know of no rule of law to prevent the implication of a right which can be the subject of an express grant. In my view of the case there is strong evidence of an implied lease of a limited right of way for a limited purpose. The cases to which we have been referred, where a formed and apparent passage was relied on, are cases in which the way was more or less a luxury.
Clancy v Byrne
[1877] 11 I.L.T.R 94
Lawson, J.
This was an action for the disturbance of a right of way, brought by the plaintiff, who, as yearly tenant of a house and farm, claimed the right of a way through the adjoining farm, held by the defendant, in order to go to a bog, and from thence to the high road. The defendant was also a yearly tenant, and held under the same landlord. The defendant denied the existence of the right of way. The defendant’s tenancy only commenced two years ago; before that the lands of the defendant were in possession of Mr. Going, the common landlord. The plaintiff succeeded his father as tenant; his grandfather was also tenant; and proof was given by aged witnesses that as long as they remembered the passsage in dispute was used by plaintiff, his father, and grandfather. There was, therefore, evidence to show that, at and before the time that the letting was made to plaintiff’s grandfather—60 years ago—the passage in question existed, and was the usual and ordinary mode of exit from the farm to the bog and to the high road. The plaintiff further, in the year 1857, took a lease from Mr. Aldwell of adjoining land, at Moyne, and, through these lands there was a mode of approach from plaintiff’s land to the high road shorter than the way in dispute, which way the plaintiff used, but his right to use it arose from the accident of his being tenant of Moyne, and this was under a terminable lease. The case was tried before my Lord Chief Justice, and, at the close of plaintiff’s case, Mr. Heron, for the defendant, applied for a direction on the ground that the tenant of one close could not by user acquire any right of way or easement over another close belonging to the same land; and that it was not a way of necessity, as the plaintiff had a better way to the public road through Mr. Aldwell’s land, which he held under a lease. The defendant then went into evidence, and the learned judge left to the jury the question whether the way was used as of right or by permission. The jury found that it was used as of right, and found for the plaintiff; leave was reserved to the defendant to move to have the verdict entered for him, and upon that rule the case has been argued. It has been settled by several cases, of which Gayford v. Moffat, L. R. 4, Ch. App. 133, is an example, that a tenant cannot by user, during his tenancy, acquire a right over an adjoining close belonging to his own landlord, nor can the tenant in this case make out a title to this right of way as appurtenant to these lands by prescription under the Prescription Act. These propositions were not disputed by the plaintiff, but it was argued that from the user the jury might presume a lost grant. I do not well see how such a presumption of a lost grant could be made in the case, because before the tenancy of plaintiff’s grandfather both closes were in the possession of the landlord. If any ancient right of way had previously existed, it would have been extinguished by unity of possesssion and title in the landlord. The grant, therefore, if to be presumed at all, must be presumed to have been made at or after the time the tenancy of the plaintiff’s grandfather commenced; and it would be a very violent presumption, indeed, that when the tenancy was created by parol, a distinct deed of grant of an easement should be presumed, and if a grant were to be presumed it should be a grant for ever, which it would be quite inconsistent to presume as being made to a yearly tenant. I think, therefore, if the verdict for the plaintiff is to be supported, it must be on a different ground; and I think there is a very clear ground upon which it may be supported. If at the time the landlord laid out the farm for letting there was a usual and accustomed way for access from it to the high road through the lands of the landlord, and if he demised it with the appurtenances and with all easements usually enjoyed with it, it is clear, upon the authorities, that this way would pass. This would be so although it was not a strictly legal way of necessity, but a way the user of which was esssential to the convenient enjoyment of the farm. If this would be so if the farm was demised by deed, there is no reason why the same rule should not apply to a parol demise from year to year. What would pass under such a demise would be the farm, with all rights usually enjoyed with it, and, if this way was the manifest access to the public road, it would be impossible to say that it would not pass. The evidence of user is to be applied, not to show that the tenant, after the commencement of his tenancy, began to use the way, but that, anterior to his tenancy, it was the usual way, and, as such, has been since enjoyed. If a landlord lays out his farm for building in lots, and makes a common avenue for all the houses leading out through other lands of his to the high road, then, though it was not a way of necessity, by reason of there being another *95 passage out to the road not going through the other close of the landlord, still it would be, in each case, for a jury to say whether, under a letting of the house, the right to use this avenue would not pass to the tenant. The jury in this case have found that it was used by right, not by permission, and this verdict would be sustained by proof that, at the time of the commencement of this tenancy, it was the usual and recognised way of approach, without which the farm could not be conveniently used.
This principal is clearly laid down by the House of Lords in Ewart v. Cochrane, 4 Macqueen, 122, Lord Campbell says:—“When two properties are possessed by the same owner, and there has been a severance made of part from the others, anything which was used and was necessary for the comfortable enjoyment of that part of the property which is granted shall be considered to follow from the grant, if there are the usual words in the conveyance. In the case of Pyer v. Carter that is laid down as the law of England, which will apply to any drain or other easement which is necessary for the enjoyment of the property.” This presumption has been acted on uniformly to the most recent cases: Langley v. Hammond, L. R. 3. Ex. 161; Watts v. Kilson, L. R. 6, Ch. App. 166. The distinction is taken in these cases between a right of way existing when the two closes belonged to different persons (such a right would be destroyed by unity of possession of the two closes, because the property of one person), and a way made for the convenience of the property by the owner of both closes. Then, if he part with this one, the way, if marked out, and necessary for the convenient enjoyment of the close, will pass. The Lord Chief Baron appears to have decided the point in the same way in Conlan v. Gavin, reported in 9 Ir. L. T. Rep. 198, upon a civil bill appeal. We are, therefore, of opinion that the verdict for the plaintiff must stand.
Morris, C.J., and Keogh, J., concurred.
Browne v Maguire
.
26 January 1922
[1922] 56 I.L.T.R 17
Lord Buckmaster (sat Speaker)Lords Atkinson, Sumner, Parmoor, Carson.
Lord Buckmaster.
My Lords, the question raised upon this appeal is as to the existence and extent of a right claimed by the appellant to pass over the respondent’s land for the purpose of cutting and carrying from a piece of property that he has purchased from the Earl of Erne the timber that grows thereon. The physical facts of the case can be shortly stated. There exists in Cornashee, in the County of Fermanagh, a Moat Ring or Rath of undoubted antiquity and of uncertain origin. It is some 3 acres 2 roods in area, and upon it there are trees, some of which have grown to maturity, some of which have passed into decay. It is surrounded by a marked boundary, and it is on all sides cut off from access to the highway by the surrounding property. Both this Moat Ring and all the surrounding property were once in the absolute ownership of the Earl of Erne, but at a date a long time past, at any rate as early as 1856, he had granted tenancies of the whole of the adjacent land, but the Moat Ring itself he never dealt with until it was sold by the trustees of the present Earl to the appellant on February 11, 1919. The respondent was originally one of the tenants, and since March, 1918, had been the owner of property that lay on the west side of the Moat Ring and ex tended to the highway. Running along the northern boundary of his holding there is, and has for some time past been, a metalled road which had access to the highway at one end and to the Moat Ring at the other. At the place where this road entered upon the Moat Ring.
Nugent v Keady Urban District Council
Circuit Cases.
8 July 1911
[1912] 46 I.L.T.R 221
Palles C.B.
Palles, C.B.
I have carefully considered this case, and I think the defendant is right. There is no obligation on the defendant to rebuild the wall, which has been taken wholly away. The plaintiff has been deprived of support, but he has been deprived of it once and for ever. There is no power to compel rebuilding of the wall. The case is analogous to cases of subsidence in mines, where the damage for each subsidence must be assessed once and for all. I accordingly reverse the decree.
Maude v. Thornton
[1929] IR 456
MEREDITH J. :
11. Nov.
The one question which arises in these several Civil Bills is whether or not the owners of Meldrum Wood, who are plaintiffs in two of the Civil Bills, and to whom I shall refer throughout as the plaintiffs, are entitled to a right of way leading from a gate at the south-east corner of Meldrum Wood along a well-defined
passage across the lands of the defendants to the public road. At the hearing the right of way was alleged on all the usual grounds, but before us the claim was only referred to in origin as a way of necessity, implied on the making of a lease, dated 7th May, 1877, from the plaintiff’s predecessors in title to Thomas Neil. The right of way is not expressly reserved in this lease, but at the time of the making of the lease the way appears to have been well defined and the regular way used for ingress and egress to Meldrum Wood; and the plaintiffs alleged that, without such a right of way, Meldrum Wood would have been land-locked.
It is clear on the authorities that, although the principle of non-derogation from a grant only operates, of course, in favour of the grantee, the implication of a way of necessity is reciprocal, and arises as well for the benefit of a grantor as for the benefit of a grantee, “probably for the reason given in Dutton v.Taylor (1), that it was for the public good, as otherwise the close surrounded would not be capable of cultivation”: Pinnington v. Galland (2). The learned Circuit Court Judge found that all the lands surrounding Meldrum Wood, other than those leased to Neil, were in the possession of tenants; but, as it did not appear how these tenants held, and as the learned Circuit Court Judge was of opinion that if some of these tenants were yearly tenants whose tenancies might have been determined by notice to quit, the lands were not shown to be land-locked within the meaning of the authorities. This Court was not inclined to follow the learned Circuit Court Judge in that point, and it was not pressed.
But there was the more serious point that the notes of the evidence did not disclose any evidence whatever as to how the surrounding lands, other than those leased to Neil, were held, or that any of the evidence which Browne v. Maguire (3) shows to be absolutely necessary in a case of this kind was produced. It seemed probable that at the hearing before the learned Circuit Court Judge it was stated that all the other surrounding land was already in the hands of tenants, and that there was no other right of way, and that the statement was not disputed. Accordingly, we gave the parties leave to adduce further evidence as to the precise position in respect of the surrounding lands at the date of the lease in 1877. This further evidence shows that all the other surrounding lands were comprised in two leases, one of 25th October, 1864, made by the plaintiffs’ predecessors to Tennant, and the other, of 19th April, 1874, to James Quirk. These two leases account for all the surrounding lands, as appears clearly from the maps. Two points are, however, made against the conclusiveness of this evidence. One was that the leases of 1864 and 1874, though for thirty-one years or lives, do not prove conclusively the position in 1877, since the leases might have been surrendered. But the evidence in respect of the subsequent purchase under the Land Purchase
Acts by the successors in title of these lessees show that the suggested possibility is excluded. Apart from that, the principle laid down by O’Connor L.J. in Maguire v. Browne (1) applies: [Reads judgment of O’Connor L.J. from the beginning on p. 169 to the end of the first paragraph on p. 170.]
The second objection was that the lessors’ successors in title subsequently got into their own hands the lands leased to Tennant, as is shown by two leases, each dated 22nd April, 1898, and made respectively to Patrick Kennedy and Heffernan. But it was proved that these leases were merely the machinery by which the lessors’ consent to a sub-division was carried out on the occasion of a sale by the then tenant, Patrick Hayden, to Kennedy and Heffernan. Hence the landlord was never in a position to secure an alternative right of way, and the necessity continued, and consequently it is not necessary to consider the doubt which has been thrown on the dictum in Holmes v. Going (2), which certainly seems difficult to support on principle. If the whole question were res integra, then perhaps a distinction might be drawn between the case of access required by a grantor and access required by a grantee, and that in the case of the grantee, where the principle of non-derogation applies, the position should be regarded just as if a grant of the right of way had been expressly inserted into the deed. In the case of the grantor’s necessity, having regard to the different foundation of the implied right, it might have been held to be only a licence, to be implied by law and irrevocable so long as the necessity continued. But such a view is now impossible, having regard to the course of the authorities. The position is now the same both for a grantor and a grantee, and, as far as concerns the latter case, I must say, it seems very difficult to my mind to see how a grant of a right of way implied on behalf of a granteeon the principle that when a person grants anything, he impliedly grants all that is indispensable for the full enjoyment of the thing grantedcan be a grant such that what passes under it may be affected by the chance subsequent acquisition of other property (other than the servient tenement itself) by the grantee. However, it is not necessary to go into this question, and I have only made these observations because the question so far seems to be covered by obiter dicta, and the addition of one further dictum can do no harm.
For these reasons it seems clear to me that, on the making of the lease in 1877 to Neil, the way in question was by implication reserved, it being then a way of necessity. That being so, only one further question arises on the learned and helpful arguments that have been addressed to us both by Mr. Garrett Walker and by Mr. Cherry. The defendants purchased the lands comprised in the lease of 1877, under the Land Purchase Acts, and the vesting order did not reserve the right of way. The defendants contend that it was accordingly extinguished. The plaintiffs, on the contrary, contend that it was preserved by sect. 34 of the Land Law (Ireland) Act, 1896, the operation of which was preserved by the Act of 1903. In answer to this contention, the defendants rely on the dictum of Ronan L.J. in Maguire v. Browne (1). It is contained in the following passage: “In the present case I must not be taken to hold that, even if a way of necessity had been acquired by Lord Erne, it would not be extinguished by the flated agreement, which does not reserve it. I think that the provisions as to the vesting order as between vendor and purchaser are contained in sect. 31 of the Act of 1896, and that the existing rights, easements, etc., in sect. 34 are those of third parties.”
Undoubtedly this dictum relates to the point at issue in this case. But the question still remains open for express decision, and of course this Court cannot follow the dictum blindly, however eminent the authority on which it rests.
Now, sect. 34, taken by itself, is certainly wide enough to cover the right of way claimed by the plaintiffs, and the only question is whether its scope is to be limited to the rights of third parties, having regard to the provisions of sect. 31. What is suggested is that sect. 31 is exhaustive in its provisions as between vendor and purchaser. But that does not seem to be so. For there is nothing in sect. 31 that could possibly be taken to deal with a quasi easement, in respect of which the land sold is the dominant tenement and land retained the servient tenement. But a right of way such as that in question, if it were for the benefit of the land sold, would certainly be preserved as between the vendor and the purchaser under the provisions of sect. 34, for, as regards that case, the words of sect. 34 are sufficiently wide, and there is nothing in sect. 31 that could cut them down. To that extent, therefore, on the one hand, sect. 31 is not exhaustive as between vendor and purchaser; on the other hand, sect. 34 is not confined to third party rights. But the words in sect. 34, “and shall be appurtenant to and exercisable over the holding as the case may be,” indicate that the preservation of rights affected by the section is intended to be mutual. I cannot think, therefore, that of the several classes of cases covered by the actual words of sect. 34 one class is eliminated by the provisions of sect. 31; but I find no difficulty in regarding the entire subject of sect. 34 (which states what easements, etc., a holding vested in a purchaser by a vesting order is to continue to have appurtenant to it or to be subject to, as the case may be, although simply vested in the purchaser in fee-simple) as excluded from the operation of sect. 31, which provides for the vesting of the holding in the purchaser in fee-simple. A holding so vested has the statutory incidents defined in sect. 34.
The result is that in the two Civil Bills in which Gerald Edward Maude and others were plaintiffs, and which the learned Circuit Court Judge dismissed on the merits, the appeal must be allowed, and the injunction sought must be granted with costs to the plaintiffs, both here and in the Court below; and, in the two other Civil Bills, in each of which a decree for 1s. was granted, the appeal must be allowed and the Civil Bill dismissed, with costs to the defendants, both here and in the Court below.
JOHNSTON J. :I concur.
M’Donagh v. Mulholland
[1931] IR 115
KENNEDY C.J. :
10. April 1930
In the year 1864 the Wicklow and Wexford Railway Company conveyed to one, Peter Higgins, a triangular plot of ground, the eastern leg of which lay along the railway, and the base of the triangle along what is now known as Dunville Avenue, Ranelagh. Peter Higgins built a terrace of six houses, with their fronts to Dunville Avenue, along the base of the triangle from its western leg, leaving at the eastern side of the terrace a passage which ran from Dunville Avenue to the rear of the terrace of houses, and in the space between the rear of the terrace and the apex of the triangle he built a seventh house, known as “The Poplars.” The houses in the terrace are numbered 20 to 25 consecutively, and “The Poplars” is numbered No. 26 Dunville Avenue. The passage to which I have referred was laid out as a private avenue for “The Poplars,” with a double gate at the Dunville Avenue end, and thence passed along the eastern side wall of the house No. 25 round to the front entrance of “The Poplars.” There is at present, and has been for many years (no one could say quite how long), a wicket-gate opening from the yard or garden at the back of No. 25 into the passage, which was referred to in the evidence as the “avenue of The Poplars.” The question in issue in the action, and in this appeal, is simply the question whether there is a right of ingress and egress through the wicket-gate for the owner of No. 25 Dunville Avenue, the plaintiff in this action, over the avenue of “The Poplars” which at present belongs to the defendant in the action. The history of the matter is as follows:
Peter Higgins, the original grantee from the railway company, lived in “The Poplars” from the time when he built the premises down to his death, which took place in the year 1906. He left a will, by which he gave the houses Nos. 20 and 21 to his son, Michael; Nos. 22 and 23 to his son, Joseph; Nos. 24 and 25 and “The Poplars” to his daughter, Anne, who afterwards became Mrs. Anne Gavagan, and was subsequently his sole executrix. Mrs. Gavagan resided in “The Poplars” until her death. in the year 1919, and she, by her will, gave the house No. 24 to her nephew, Joseph Higgins; the house No. 25 to her nephew, Geoffrey Stephen Higgins (then an infant under the age of twenty-one years), and “The Poplars” to her brother, Joseph Patrick Higgins, subject in each case to a life interest, which she gave to her husband, John Gavagan; and she appointed her husband and her brother, Joseph Patrick Higgins, trustees and executors of her will. Joseph Patrick Higgins was already the owner of Nos. 22 and 23 under his father’s will. Some months after the death of Mrs. Gavagan all these houses, Nos. 22, 23, 25, and 26, were offered for sale by public auction in lots at the same auction, and under the same conditions of sale, but in the case of Nos. 22 and 23 the vendor was Joseph Patrick Higgins, selling in his own right as owner, while in the case of No. 25, the vendors were Joseph Patrick Higgins and John Gavagan, selling as trustees for the purposes of the Settled Land Acts, having been appointed by the Court to be such trustees owing to the minority of the owner of No. 25; and as regards “The Poplars,” John Gavagan and Joseph Patrick Higgins made titlethe one as tenant for life, the other as entitled in remainder.
At the auction, “The Poplars” was sold to a man called Haydock, who subsequently, in the month of February, 1927, sold the premises to the defendant, Mrs. Mulholland. The house No. 25 was sold at the auction to one Lambert, who subsequently, in June, 1925, sold the premises to the plaintiff, M’Donagh. The plaintiff had held previously for some years, and held at the date of the sale, the house No. 25 on a yearly tenancy, which commenced in the year 1917.
The only other house in the terrace which had a wicket-gate opening into any part of the premises known as “The Poplars”was the house No. 23, which it was said had at one time been occupied by a member of the Higgins family. In the case of all the other houses, Nos. 20, 21, 22, and 24, the only entrance or exit was the front hall-door, and all goods and materials which it was required to bring into any of these. houses had, and have, to be conveyed through the hall-door and hall.
It is not known why the wicket-gate in the side wall of No. 25, opening on to the private avenue of “The Poplars,” was first made, but it was in existence prior to the first tenancy of those premises of which any evidence was given, namely, the tenancy of John Fisher, who occupied the premises No. 25 from the year 1899 to the year 1907, as yearly tenant under Peter Higgins, and afterwards under Mrs. Gavagan. He gave evidence for the plaintiff, and stated that he received the key for the wicket-gate, or found it hanging in the premises, when he became tenant, and that he used this gate for the purpose of getting in coal for the house and for the purpose of porters delivering goods. He said that Peter Higgins used to get a little path connecting the wicket-gate with the avenue cindered. When he was leaving, at the expiration of his tenancy, he gave up the key to Mrs. Gavagan. Fisher was succeeded by a tenant named Patrick Joseph M’Inerney, who gave evidence for the plaintiff, and stated that he had occupied the premises under a monthly tenancy from the year 1911 to the year 1916. He said that he used the door daily for conveying goods in and out, for getting in coal, and for bringing in manure for the garden at the rear of No. 25. M’Inerney was succeeded by the plaintiff as tenant. The plaintiff entered the premises under a yearly tenancy in August, 1917, and continued as such tenant until his purchase of the fee-simple interest in the premises. He stated that he used the side door for the purpose of getting in coal, for bringing bicycles in and out, and for getting in manure for the back garden, and that the only other way available for any of these purposes was through the front door and the hall. He bought the fee-simple of his house in the year 1925 from Mr. Lambert, who had purchased at the auction in 1919. There is no reference to any right of way in the conveyance to the plaintiff. Mr. M’Donagh gave evidence as to a conversation with Haydock, then the owner of “The Poplars,” in the month of January, 1927, when Haydock is stated to have complained that he could not dispose of “The Poplars” because of M’Donagh’s side entrance, and invited M’Donagh to sign a document, which was not put in evidence, but which M’Donagh refused to sign. One night during the week following this conversation, Mr. Haydock, from his side, closed the doorway by fixing up a wooden board covering the door and frame, and planted a tree in front of that again; and apparently, whatever small track existed, connecting the doorway with the avenue, has become obliterated.
Mr. John Gavagan, the husband of Anne Higgins stated that he lived in “The Poplars” from 1905 to 1919, when the sale took place, to which he was a party. He stated that he had never recalled permission to use the side door in No. 25.
Two witnesses only were called for the defendant. They were Mr. Holden, the auctioneer, to whom was entrusted the sale of all the houses, in the year 1919, and Mr. Lambert, the purchaser of No. 25 at the auction. Mr. Holden was examined as to the conditions of sale under which the property was sold, and particularly as to a special condition, No. 10A, which was stated to be typed on a separate slip, or rider, and attached to the conditions of sale. It was in these terms: “The use of the avenue of Lot 4 [i.e., ‘The Poplars’] as an exit from the rear of Lots 2 and 3 [Lot 2 was No. 23 and Lot 3 was No. 25 Dunville Avenue] has been merely permissive, and the permission for such user has been recalled. Accordingly, Lots 2 and 3 are sold without any right of exit, and the existing exits can be closed, and the purchaser of each of the said lots respectively shall make no claim thereto, or any objection to the closing thereof, nor obstruct in any way the purchaser of Lot 4 from closing or building up said exits.” Mr. Holden had not a clear recollection of the circumstances, which, indeed, he admitted, he did not remember He was unable to say if the typed condition applied to all the houses, and he said that it might have been attached to one lot only. It is to be remembered in this connection that, while the vendors were selling as absolute owners in the case of the second and fourth lots that is to say, the house No. 23 and “The Poplars” they were selling as trustees for sale, for an infant owner, in the case of the house No. 25 (Lot 3).
Mr. Lambert, the purchaser of No. 25, who afterwards sold to the present plaintiff, gave evidence which was very specific on the point of the conditions of sale. He said that he was aware that he was not to get the right of way; that he wanted to buy the whole premises for sale in order to preserve this right of way; and that, when he was selling to M’Donagh, he had no right of way to give. He said that, when buying, he had made no inquiry as to the right of way. He knew there was a side entrance, and that he first learned about the right of way from the conditions of sale.
This action was originally commenced by plenary summons in the High Court, in which the plaintiff sought a declaration that, as owner of the lands and tenements known as No. 25 Dunville Avenue, Ranelagh, in the County of Dublin, he is entitled for himself, his servants, agents, and under-tenants at all times to a right of way with horses, carriages, wagons, and motor cars over the lands known as 26 Dunville Avenue, the property of the defendant, between the eastern entrance or gateway to No. 25 Dunville Avenue aforesaid and the front or avenue entrance of No. 26 Dunville Avenue aforesaid; and the plaintiff claimed an injunction restraining the defendant from erecting a wall across, or a tree upon, the said alleged right of way or otherwise obstructing the passage of the plaintiff over the same, and a mandatory injunction requiring the defendant to remove existing obstructions whereby the plaintiff, his servants, and agents are hindered from using the said passage, together with damages and other relief.
When one bears in mind that the valuation of each of the two houses involved in this controversy is £18 per annum, and that the plaintiff’s house was let on a yearly tenancy at £38 per annum in the year 1919, and that the letting value of “The Poplars” was stated in 1919 to be £52 per annum, the action was very properly transferred to the Circuit Court for hearing.
The learned Circuit Judge gave the case much consideration. He found that there was, in fact, a clearly defined cinder path from the avenue of “The Poplars” to the door in the side wall of No. 25, and that all the tenants of No. 25 had the use of the door and cinder path, and a way over the avenue, or portion of it, as incident to their respective tenancies; and that the way was unquestionably an “apparent easement.” He held that the will of Anne Gavagan, who died during the plaintiff’s tenancy, devising No. 25 and “The Poplars” to two different people, conferred on No. 25, by implied grant, a right of way over”The Poplars”; and that, in addition, the right of way was appurtenant to the plaintiff’s tenancy. He found, as a fact, however, that the premises were sold to Lambert, subject to the special condition; but, on the other hand, he held that the user up to that time was not by permission, and that the right of way did then exist, and that the special condition was a mis-statement statement of fact, and that there was nothing in the special condition that could affect the rights of the tenant of No. 25, and the right of way would continue to exist so long as the tenancy should continue; and he held that there was no intention to merge, and no merger of the tenancy in fact, on the acquisition by the plaintiff of the freehold reversion of his tenancy. He suggested that the plaintiff, as successor in title of Lambert, was possibly estopped by the special condition from setting up the easement in right of the freehold reversion. He therefore made a decree in favour of the plaintiff, but he stated the limits of the right of way as he found it to exist, namely, a right of way over the lands of No. 26 (“The Poplars”) “on foot only for the purpose of bringing coal, manure, and his bicycle, according as it is necessary.”
The defendant appealed to the High Court on the ground that the evidence did not support the findings. The appeal was heard by Johnston and Meredith JJ., who agreed in affirming the Circuit Judge but certified that the decision involved a question of law and fact of such importance as to be fit to be the subject of an appeal to this Court., whereupon the defendant took the present appeal. Both the learned Judges of the High Court who heard the appeal rejected the contention that there was an estoppel raised by the condition of sale under which Lambert bought, and they both held that the right of way was never permissive, but came into legal existence on the severance of the two houses and premises by the will of Anne Gavagan, and was appurtenant to the freehold estate in the premises, No. 25, in the devise of which it was implied as reasonably necessary to the enjoyment of those premises in the condition in which they were devised.
The law applicable to the case presents no great difficulty. The whole difficulty in the case is due to the parsimony of the evidence, which is so meagre as to raise a suspicion of careful filtering to rid it of any matter which might be in any way deleterious to the side for which it is given.
The easement which the action was brought to establish, as stated on the originating summons, was a right of way for the plaintiff as owner of No. 25 at all times with horses, carriages, wagons, and motor cars over the lands of “The Poplars” between the side door of No. 25 and the front or avenue entrance of”The Poplars,” unlimited as to purpose. The easement which was given him by the decree of the Circuit Court was limited to a right of way on foot only, and for the purpose only of bringing coal, manure, and his bicycle, according as it is necessary.
In my opinion, the plaintiff failed entirely to prove his case not only for his preposterous claim, as stated on his originating summons, but even for the much attenuated right which the learned Circuit Judge declared in his favour, and which the plaintiff has sought to hold in this Court.
The case made for the right of way does not rest on prescription or lost grant. The case made for it is implied grant to be presumed from the severance by the will of Anne Gavagan in 1919, of the premises theretofore in the unity of her possession, viz;., the premises, No. 25 and “The Poplars,” No. 25 being then in the occupation of a tenant who is alleged to have been in enjoyment, as a quasi-easement and in virtue of his tenancy, of a right of way as claimed over the lands of “The Poplars.”
No case for a way of necessity arose on the severance of the premises. The plaintiff’s house, No. 25, has, in the same way as every other house in the terrace has, complete and undisputed access to the highway upon which it abuts, viz., Dunville Avenue, through the front door of the dwelling-house and the wicket-gate of the front garden, provided for that purpose. Therefore, the plaintiff has to undertake the burden of bringing himself within the decisions on implied grant of easements in cases where unity of ownership is severed, but where the severance does not create a necessity for a way in favour of one parcel over the other parcel, as, for example, by reason of the first parcel being otherwise landlocked.
To sustain the implication of a grant where there is no case for a way of necessity, he must show that his tenement is so constructed as that parts of it involve a necessary dependence, in order to its enjoyment in the state in which it was when devised, upon the adjoining tenement: Pearson v. Spencer (1);or that there was then existing a continuous and apparent easement (i.e., quasi-easement up to severance), necessary to the reasonable enjoyment of the property granted, over the property retained.
Mere proof of the existence of a door or gate in a boundary wall of a tenement is not of itself sufficient to establish a right of way. At most such a door or gate is capable of being aterminus a quo or ad quem of a way, but is itself no part of the way. When we find that the side door or gate opens upon a private avenue leading out upon the same highway as the front door of the house and within a few feet of it, a right of way from the side door could not be said to contribute to the beneficial enjoyment of the plaintiff’s house from the point of view of its occupants and their convenient approach to the highway. In this respect the case differs from so many of the cases in the reports in which the way claimed led on to a different highway from that upon which the principal entrance opened, so that the occupants of the claimant’s house would have the advantage of access to another street or road or to a laneway giving a way to or from stables, garage, or the like, a clearly apparent easement necessary to the reasonable enjoyment of the property in its then condition, as was the case in, for example, Brown v.Alabaster (2). Such is not the case here. Looking only to the doors, there is no apparent reason for conferring two openings to the same highway upon the plaintiff’s house, a small dwelling, stated in the year 1919 to be of £18 valuation, and let at £38 a year, a house of a class and condition in which no one would expect to find what is sometimes called a “tradesman’s entrance.”It would be still more difficult to imply the grant of a way from the existence of a door so placed, when the servient tenement is the front avenue of the adjoining and more valuable houseits letting value was said in 1919 to be £52 a year that is to say, to infer from the existence of a door that, on severing the two houses, the owner granted over the front approach to one house a back way (with no apparent necessity) into the other. In order to convince me of such an implied grant, the plaintiff would have to make a case for it by evidence of much more than the mere existence of the door, showing by the structure and general lay-out of his premises that the reasonable enjoyment of them, such as they are, requires a way of access from the highway over the defendant’s premises to the side-door. He claims to use the door for the purpose of bringing in supplies of coal and manure, and for taking bicycles in and out. Yet not a tittle of evidence was given as to the position of the coal-cellarit may be in front of the house for all we knowor as to the ground at the rear calling for manureit may be a flagged yard so far as the evidence is concernedor as to the accommodation, if any, for bicycles in the rear of the premises, or as to any features of the plan of the premises, showing that it would be more convenient, if not necessary, for porters to deliver goods at this door rather than at the front door, as in the case of every other house in the terrace. The one slender fact proved is that, during the tenancy of one Fisher, upwards of twenty years ago, the then owner cindered the few feet of ground between the door and his own avenue. Although several successive tenants of the premises gave evidence, covering in all a period of thirty years, no other such more or less cogent facts in support of the plaintiff’s claim were elicited on examination, from which I can only infer that nothing helpful to the plaintiff could be said by any of these witnesses. The plaintiff has therefore, in my opinion, wholly failed to make a case for implying an apparent easement of the kind I have mentioned from the state and condition of the property, and the requirements for reasonable enjoyment, at the time of severance of ownership.
There was another way in which the plaintiff might have established the right of way by implied grant if the evidence supported it. He stated that, when he became tenant of the premises in 1917, he signed an agreement for a twelvemonths’ letting, at the expiration of which he continued as tenant on the same terms. The right of way claimed, with the peculiar limitations of user mentioned in the evidence, points rather to an origin in express agreement. There might well have been an agreement for a right of way, as part of the terms of the tenancy, which would have bound Mrs. Gavagan and her property in such a way that, on a sale of the plaintiff’s part of the property subject to his tenancy, it must also have passed with the benefit of such contractual right. But the letting agreement was not put in evidence, nor was any evidence given of any agreement, oral or written, for the use of any such right of way. Moreover, the plaintiff’s evidence as to his transaction at a later date with Mr. Haydock rebuts, in my opinion, the idea of an existing contract for a right of way. I must conclude, therefore, that there were no facts resembling those in Donnelly v. Adams (1) a decision which, in my opinion, rests on contractor any provable facts upon which to base a right originating in contract and confirmed by implied grant.
In my opinion, therefore, the plaintiff wholly failed to establish the right of way either as claimed or as decreed in modified and restricted form, and his action should have been dismissed. It is probable that permission was given from time to time to various tenants to use the door for one purpose or another as occasion might arise, without causing inconvenience to the residents in “The Poplars,” but there was no evidence before the Court, in my opinion, from which a grant of an easement could be implied in favour of the plaintiff, based either on contract or on any apparent or continuous easement necessary for the reasonable enjoyment of the plaintiff’s premises in their condition.
I am of opinion that the appeal should be allowed with costs, the decree of the Circuit Court discharged, and the action dismissed with costs.
FITZGIBBON J. :
It appears to me that overmuch attention has been directed, in the present case, to a discussion of the legal principles applicable to quasi-servitudes and easements appurtenant, and that, in the course of the arguments, both in the High Court and before us, the answer to the preliminary question, whether an easement over the avenue which is now the property of the defendant was ever enjoyed as of right by the occupiers of the house now owned by the plaintiff, has been either assumed or treated as of no importance at all.
In my opinion we must first be satisfied that a right of way, properly so called, actually existed from the door in the plaintiff’s garden to the defendant’s avenue and, along it, to and through the defendant’s front gate. It will then be time enough to consider whether this right of way was ever vested in the vendor, from whom the plaintiff purchased the fee of his premises, and whether the plaintiff may have had a right, as a term of his own tenancy, but not as appurtenant to the lands of which he was tenant, to use his landlord’s avenue for certain specific purposes, which would come to an end with the determination of the tenancy by which it was created.
The existence of this right in the occupiers of No. 25 appears to have been assumed throughout by the learned Circuit Judge and the Judges of the High Court. Johnston J. says: “The Judge in the Court below found as a factand I fail to see how he could have come to any other conclusionthat, when the plaintiff took a letting of No. 25 in 1917, the right of passage through the gateway on to the avenue and thence to the public street for certain limited purposes was a continuous and apparent easement necessary to the reasonable enjoyment of the property demised.”
I find it necessary at the outset of the case to examine the evidenceand there is little dispute about the factsupon which this assumption is founded.
In the year 1864 the Dublin, Wicklow, and Wexford Railway Co. conveyed a triangular plot of ground on the north side of Dunville Avenue, and containing in all one rood and seven perches, to Peter Higgins in fee-simple. Upon this plot Peter Higgins, at some unascertained date, built a continuous terrace of six small houses, numbered 20 to 25 Dunville Avenue, fronting upon Dunville Avenue, set back some ten or twelve feet from the roadway, each of which had behind it a small garden, the dimensions of which may be estimated from the fact that the area comprising each house, with its curtilage, possessed a frontage of only 20 feet, and extended for only 100 feet from the roadway to the back wall.
Upon the remaining portion of this plot Higgins built a larger house, No. 26, which he occupied himself, and which was approached from the public highway through a double gate along an avenue, with a carriage way eight feet wide, which runs parallel to the railway embankment and along the eastern boundary wall of No. 25. The grounds and avenue of No. 26 are separated from the six houses in the terrace by a continuous concrete wall, in which there are two doors, one in the end wall of the garden of No. 23, and the other, with which this action is concerned, in the eastern wall of the garden of No. 25. When or why these entrances were made does not appear, but evidence was given by John Gavagan, Peter Higgins’ son-in-law, who had lived in No. 26 for fourteen years, from 1905 to 1919, that No. 23 had been occupied for some years before 1905 by a son of Peter Higgins named John Patrick Higgins, to whom it was devised by his father, and it may be that the door between the garden of No. 23 and the grounds of No. 26 was to facilitate intercourse between father and son; and, as the history of No. 25 commences with a yearly tenancy in 1899, the existence of a similar communication with the garden of that house may possibly have had a similar origin. It is equally possible that the original design of the terrace may have included a passage at the rear, with doors opening into it from the gardens of the different houses, and that two doors were made, but the design was never carried out. We have no evidence on the point. That these doors are in no real sense “necessary for the reasonable enjoyment of the property” is clear from the fact that the door to No. 23 has long been out of use, and that no such convenience ever existed in the cases of Nos. 20, 21. 22, and 24, erected by the same owner in the same terrace.
As to the actual use made of the door with which this cas is concerned, there is no evidence before 1899. About that year John Fisher became a yearly tenant to Peter Higgins under an agreement in writing, which was not given in evidence. When he entered into occupation, he found the key of the door on the inside. His account is that he “used the door for the delivery of coal and the like,” “for porters delivering goods or for coal.”He also says that “the late Mr. Higgins used to get the little path up to the door cindered.” This statement appears to refer to some then existing track, about five or six feet long from the edge of the avenue of No. 26 over the grass margin to the door in the garden wall of No. 25. There is no evidence that any laying of cinders or gravel or any repairs were done by anyone to this track after the death of Peter Higgins, which took place on April 1st, 1906. Peter Higgins devised his fee-simple interest in No. 25, subject, of course, to Fisher’s tenancy, and in No. 26, the house in which he lived with his daughter, Anne Gavagan, and her husband, to Anne, who continued to reside there until her death in 1919. Fisher’s tenancy of No. 25 came to an end in 1907, and thereupon Anne became owner in fee in actual possession and occupation of both 25 and 26 There is no evidence of any user of the door between 1907 and 1911, in the latter of which years P. J. M’Inerney took No. 25 upon a monthly tenancy, which lasted till 1916. He says he used the door in the wall “daily,” but when asked “What for?”he says: “We used it to get in coal and to get in manure to the garden and such things and so forth”; and, on cross-examination, to the question, “Did you get these in daily?” he replied:”No, but as occasion arose.” “Your user was very much the same as Mr. Fisher’s when he brought coal around and no on said anything to him?” “Exactly.” He left in 1916, and in August, 1917, the plaintiff took No. 25 under a tenancy for twelve months, at a rent payable monthly in advance. He says he used the door “For bringing coal in and bicycles in and out, and I have brought manure through for the back garden”; and that he never had any interruption in his user of this “right of way.”
Anne Gavagan died on the 28th of February, 1919, and by her will she devised her interest in No. 25 to her nephew, Geoffrey Higgins, then a minor, the son of Joseph Patrick Higgins, to whom she devised No. 26, and who was himself the owner in fee of No. 22 and of No. 23, the only other house in the terrace which had a door opening from its back garden into the grounds of No. 26.
What, at the date of Anne Gavagan’s death, were the rights of the landlord and the tenant of No. 25, and the respective rights of the occupier of No. 25 and the owner of No. 26? Judge Davitt and Johnston J. have decided, and Meredith J. appears to have assumed, that “the existence of the gate, with its convenient lock and key, and its user in connection with the avenue by Fisher, M’Inerney, and the plaintiff, lead only to one conclusion, namely, that the owner of the whole himself thought that a way through the gate and along the avenue was necessary for the reasonable enjoyment of the plaintiff’s premises.”
If one were to draw any inference as to an easement from the existence of a doornot, as Johnston J. twice calls it, “a gate”in a wall, I should have thought the proper inference would be of a way for foot passengers only; but one curious feature of the evidence in this case is that there is no suggestion that this doorway was ever used by anyone as an ordinary foot passenger’s mode of exit or entrance, and neither it nor the track leading to it was capable of affording access by carts or carriages to the curtilage of No. 25, and any lorry, cart, or vehicle, from which coal or manure, or whatever things ejusdem generis may be meant by Mr. M’Inerney’s “and such things and so forth,” or Mr. Fisher’s “anything like that,” were being delivered to No. 25 through that door, would have to remain stationary in the eight-foot wide avenue of No. 26 during the entire process of unloading, and would have to back either in or out, or, if it wanted to turn, would have to go on up to the sweep in front of No. 26 and turn there. It must be remembered that we are not concerned here with an easement acquired by prescription or under some presumption of a lost grant. We are asked to infer from the existence of this door in the garden of No. 25, and the user which has been sworn to, the existence of a right in the occupier of No. 25 to obstruct with carts and lorries, whenever it suits his own convenience to do so, the only mode of access possessed by the owner of No. 26 to his own house, upon the ground that such a right is apparent and necessary for the reasonable enjoyment of No. 25.
The conclusion to which the evidence leads me is that Peter Higgins and Anne Gavagan, dealing, as they were, with monthly or yearly tenants, whose tenancies could be determined on short notice, and who could easily be prevented from acquiring any rights by prescription, did not trouble to interfere with an occasional user of the garden door by their tenants so long as it did not occasion any inconvenience to the landlord, and so long as it could not mature into a prescriptive right. I do not know how often the tenant of such a house as 25 Dunville Avenue would require to restock his coal-cellar, but I can make an estimate of the frequency with which a load of manure would be required for a patch of ground, a quarter the size of a lawn tennis court, forming the back garden of such a house.
There is really no evidence in this case that the user deposed to is necessary for the reasonable enjoyment of No. 25. No similar house in the same terrace possesses a back door, except No. 23, whose occupier does not, and, for all we know, never did, make such a use of it. There is no evidence in this case, such as was given in Donnelly v. Adams (1), that the internal arrangements of No. 25 are such as to justify an inference that coal was to be brought in by the back entrance, nor, in the words of FitzGibbon L.J. (2), any “visible indication that the back door was the normal way by which coals were to come in.”
In that case (1) the decree limited the plaintiff’s use of the back door to “the purpose of ‘coaling’ Donnelly’s house,”showing, if it was not clear from the judgments, that the ground of the decision was the agreement of the parties, and not the apparence or necessity of the easement, which would have entitled the owner of the dominant tenement to use the door “for all the purposes for which the back door of such a house might be required.” (2). Ashbourne C. appears to base his judgment mainly upon “the understanding of the parties” as arrived at in “a conversation about the back door” “while negotiations were in progress between the defendant and the plaintiff’s father,” in which the former said he would “allow him to get in his coals when he wanted”; and the Lord Chancellor says (3):”I cannot believe that the word ‘allow’ was either intended or understood to imply nothing more than a licence or permission revocable at the will of the defendant.” There is no doubt about the basis of the judgment of FitzGibbon L.J. (4): “All these justify the inferencewhich I draw without doubtthat it was a term of the contract for the lease, collateral to the letting, and covered by its consideration, that the lessee should be entitled as of right to bring his coals in by the back door, and to cross Adams’ field for that purpose . . . . I rest my judgment on contract, and on contract only.” Walker L.J. says (5): “The user and the conversation deposed to do not create the right, but are to be looked upon as fortifying it, and as showing the understanding of the parties as to the condition of the thing demised. It is urged for the defendant that the law requires that there should be a marked and defined way leading from the back door across the defendant’s field, as there is not a continuous or apparent easement, in order to pass a right of way without an express grant. But the question which we have to consider is whether any way to the gate at the canal impliedly passednot on a particular trackbut at all.” Holmes L.J. says (6): “The inference I draw from the evidence is that the lessee was told that he was not to have a general right of way, but a right to draw his coal . . . I think the reasonable inference from the other evidence is that the use was to be confined to coal.”
If the inference to be drawn from the mere existence of a back door opening upon another man’s land is that the owner of the door has an apparent and necessary right to bring in, by that back door, coal and manure and bicycles, and, I suppose,”such things and so forth,” why did every member of the Court in Donnelly v. Adams (7) dwell upon the “conversation” and”understanding between the parties,” and why did FitzGibbon L.J. “rest his judgment on contract, and on contract only,”instead of on the door and the door alone?
In the present case there is no evidence of any conversation, understanding, or contract, and no evidence that “in the arrangement and plan of the house the receptacle for coals was situated so as to be conveniently approached and filled from the back door” (1); nor any evidence of the existence of a coal-bin at all, still less of “a concrete walk from the back door to the coalhole or bin, a visible indication of the normal way by which coals were to come in” (2); and, as I have said, all the other houses in the terrace get their coals in without having recourse to any back door. In my opinion, Donnelly v. Adams (3)does not support the plaintiff’s case, and was decided upon the terms of a special “understanding” or “contract” between the landlord and the original tenant of the premises, of which there is no evidence in the present case.
There are many expressions in each of the judgments in this case for which I can find no justification in the evidence. In considering, and arriving at the existence of, an apparent easement, Judge Davitt says: “In the wall of the garden of No. 25 . . . there is a door, and from that a cinder path leads to the avenue of No. 26.” “Mr. M’Inerney, who was in possession from 1911 to 1916, used this cinder path in the same way as Mr. Fisher.” “In 1917 the plaintiff became a yearly tenant in No. 25, and he used the way in the same manner as Mr. Fisher and Mr. M’Inerney.” “From the avenue of No. 26 to this door there is a clearly defined cinder path.” “Where the way is so clearly indicated, as in this case, by a door and a made path leading to a made avenue, there is no question about the easement being apparent.” “The will of Annie Gavagan. coupled with the fact of the made path leading to this door.”Who, reading these statements, would imagine that the only evidence about cinders is that “the late Mr. Higgins,” who died in 1906, “used to get the little path up to the door cindered,”and that there is no hint in the evidence of the existence of any path at all at any date within the last twenty years? Yet the judgment of Judge Davitt is accepted absolutely by Johnston J. Meredith J., after describing the fifty-yard long and eight-foot wide drive up to No. 26 as “a stately avenue,” says that “in the wall at the rear” of No. 25 “there is a gate through which coal and manure have been brought along the avenue to No. 25,”and, further on, he twice refers to this door in the wall as “a gate.” Of course, if there had really been a gate into the plaintiff’s garden, there would be some plausible excuse for giving a right of way to it with carts and carriages along the defendant’s avenue.
In my opinion this is an attempt to claim as a legal right a privilege which was allowed without objection by an indulgent landlord, who was also a neighbour, and who was loth to prohibit, and probably not unwilling to permit, an occasional use of portion of his own avenue to a tenant for the convenience of the latter.
If there be an easement at all, I fail to see why it is to be confined to the introduction of coal, manure, and bicycles.”The user does not create the right”: per Walker L.J. in Donnelly v. Adams (1); the easement is for whatever is apparent and necessary. How is a right to carry in coal or a bicycle through this door more apparent or necessary than a right to go in or out on foot? Bicycles have been in fairly regular use for over forty years by the occupants of the house in which I live, which is amply provided with doors and gates and offices at the rear, but I have hardly ever known a bicycle brought in otherwise than through the front hall-door, and I confess that I cannot see that the extravagant claim put forward by the plaintiff, “for a declaration that he is entitled for himself, his servants, agents, and under tenants, at all times, to a right of way, with horses, carriages, wagons, and motor cars, over the lands known as No. 26 Dunville Avenue, the property of the defendant, between the eastern entrance or gateway to No. 25 Dunville Avenue aforesaid and the front or avenue entrance of No. 26 Dunville Avenue aforesaid,” is for an easement any less or more “apparent” from the existence of the door in his garden wall than the right which has been granted to him by the decree against which this appeal has been taken. The extent of an apparent easement must be taken from that which appears; user becomes material when the easement has been acquired by prescription or implied grant. If this back door is the apparent and necessary way for bringing “coal, manure, and such things and so forth” into No. 25, I fail to see why it is not equally apparent and necessary that the plaintiff should have the right to obstruct the defendant’s avenue with a pantechnicon while he is bringing in or out furniture or anything else which can be carried more conveniently through the back than the front of the house. Bicycles, which he is allowed by the decree to bring in, were unknown when this door was made, and cannot have been in the contemplation of the builder; but, if bicycles, why not motor cycles, which are less appropriate to the hall-door entrance?
I have dealt with the respective rights of the occupier of No. 25 and the owner of No. 26 as they appear to me to have existed at the date of the death of Anne Gavagan, and it remains to inquire whether anything has taken place since that date to alter them. By her will she devised her interest in No. 25 to her nephew, Geoffrey Higgins, then a minor, the son of Joseph Patrick Higgins, to whom she devised No. 26, and who was himself, under his father Peter’s will, the owner in fee-simple of Nos. 22 and 23. She appointed her husband, John Gavagan, and her brother, Joseph Patrick Higgins, executors and trustees of her will. Joseph Patrick Higgins decided to sell his interest in Nos. 22, 23, and 26, and he and John Gavagan, as trustees of Anne’s will, decided to sell, at the same auction, the interest of the minor, Geoffrey Higgins, in No. 25, and for the purpose of The particulars comprised four lots, respectively 22, 23, 25, and 26, and the conditions of sale included the following:”The use of the avenue of Lot 4″ [No. 26] “as an exit from the rear of Lots 2” [No. 23] “and 3” [No. 25] “has been merely permissive, and the permission for such user has been recalled. Accordingly Lots 2 and 3 are sold without any right of exit, and the existing exits can be closed, and the purchaser of each of said lots respectively shall make no claim thereto or any objection to the closing thereof, nor obstruct in any way the purchaser of Lot 4 from closing or building up said exits.”That condition was absolutely proper and correct if the inference I have drawn from the evidence is the true one, and no one should have known the true facts of the case better than Joseph Patrick Higgins, the owner of No. 23 since his father’s death in 1906, and John Gavagan, who had lived for fourteen years in No. 26, married to its owner, who was also the owner and lessor of No. 25.
I decline to assume, or to draw the inference, without any evidence to support it, that two men, neither of whom is a party to these proceedings, had conspired to defraud a minor for whom they were trustees, and who was the son of one and nephew of the other, by a false statement that a way in fact appurtenant as a necessary easement to property of his, which they were selling on his behalf, was permissive only, merely in order to obtain a possibly enhanced price for a portion of the father’s property, and I should decline to make any such assumption even if the evidence in support of the existence of the easement claimed were very much stronger than it appears to me to be. If the statement in the condition was false, it was deliberately so, and John Gavagan at any rate had nothing to gain by the fraud. He was called and examined as a witness on behalf of the plaintiff, and this was the material part of his evidence as to the user of the door: “Are you familiar with this property? Yes. And are you familiar with it long? Yes, I lived in No. 26 for fourteen years, 1905 to 1919. Between these dates did the owner of No. 25 exercise any rights over your property?”No answer, which is not surprising, as the same person was the owner during all that period of both 25 and 26. “The Judge: What happened with regard to the gate? The gate was there in 1905 when I went in, and it was there when I left. That is all I know about it.” The witness does not seem to have shown any hostility to the plaintiff, and no application was made for leave to cross-examine him on that ground, nor was any suggestion made to him that coal lorries and manure carts were such frequent objects upon the avenue of No. 26 that he must have known of their presence there under a claim of right.
At the auction held under these conditions one Thomas Lambert became the purchaser of Nos. 22, 23, and 25, and he clearly understood that he was not to get any right of way.
He says he was well aware that he was not to get any right of way, that he observed the conditions of sale and understood them perfectly, that he wanted to buy No. 26 in order that he might preserve for Nos. 25 and 23 the right of way over it, but that it went beyond his price, and that he made Mr. Haydock buy it. The meaning of the last statement is not clear. It may be that he induced Mr. Haydock to buy 26 because he thought Haydock would continue, or renew to him, the permission to use the avenue of No. 26. In 1919, when Lambert purchased the fee-simple of No. 25, the plaintiff was in occupation under a yearly tenancy, which had arisen on the expiration of his original agreement for twelve months in August, 1917. In 1925 the plaintiff purchased Lambert’s reversion, and now claims that the conveyance of this reversion has vested in him, in perpetuity, the easement over the grounds and avenue of No. 26.
In my opinion, when Lambert paid for the reversion in fee of No. 25 a sum calculated upon the assumption, common to himself and the vendors, that there was no right of way over No. 26 appurtenant to it, and when he, as he says he did, induced an intending purchaser of No. 26 to buy it upon the same assumption, it would be contrary to every principle of equity to permit him, or any person claiming through him, to assert the existence of such a right against the owner of No. 26; but it is unnecessary to decide this question, as I hold that the occupier of 25 never had any right of way over the avenue of No. 26, and there is no evidence that when 25 and 26 were in the occupation of the same owner, whether Peter Higgins or Anne Gavagan, either of them used this back door as a means of bringing coal or anything else into No. 25. Pearson v.Spencer (1), upon which reliance has been placed by the plaintiff, does not appear to me to be of any assistance upon this point. In that case there was a devise to A. of a farm, landlocked by property of third parties and by a farm devised by the same will to B. The testator had always used a particular made way over the farm of B. for going to the farm devised to A. It was admitted that A. was entitled to use this way as a way of necessity until it touched the boundary of his own farm, but B. contended that he was bound to break an entrance at that point and “road himself” thence, and that he was not entitled to use the existing way to the point at which the actual entrance had always been. The Court held that the devise of the landlocked farm included by implication the devise of a necessary way, and that a right to use the way theretofore actually used by the testator himself passed by implication as to its entire length, and not merely as to so much of it as was a way strictly of necessity.
I do not read the judgments in Donnelly v. Adams (2) and in Rudd v. Bowles (3), a very similar case, as purporting to overrule previous dicta and decisions to the effect that quasi-easements not continuous and apparent in their nature, such as an ordinary right of way, not being one strictly of necessity, do not pass on severance of estate unless there is some formed or defined road over the quasi-servient tenement to evidence their existence. The avenue of No. 26 is not such a formed or defined road, as it existed, and was essential, for the enjoyment of the house to which it led, and I can see no evidence of the existence within the last twenty years, or when Anne Gavagan died, or When Lambert purchased No. 25, of any formed or defined passage from the back door of No. 25 to the avenue of No. 26.
In my opinion the appeal should be allowed.
MURNAGHAN J. :
This action concerns the existence of a disputed right of way. The plaintiff, the owner of 25 Dunville Avenue, claims a right to pass in and out of a doorway, in his yard at the back of the house, over the avenue which passes by his house on its right-hand side as an entrance to No. 26, and also to bring coal and manure with a horse and cart up the avenue to the door in his yard.
Peter Higgins acquired, in 1864, a triangular plot of ground in fee-simple. Its base now abuts on Dunville Avenue. No. 26, called “The Poplars,” is set back towards the apex of the triangular plot, and was the residence of Peter Higgins. He built a row of houses fronting Dunville Avenue, which are now numbered 20, 21, 22, 23, 24, 25. A broad avenue, planted with shrubs, gives access from Dunville Avenue to “The Poplars,”which is, as I have said, set back behind the row of houses. This avenue is to the right of No. 25 as one approaches “The Poplars.”
Many years ago a door was made at the rear of No. 25, adjoining the avenue. It is suggested that, at that time, a son of Peter Higgins occupied the house, No. 25. Peter Higgins died in 1906, and he devised 24, 25, and 26 to his daughter, Anne Gavagan, who subsequently resided in “The Poplars.”She let the house, No. 25, to successive tenants, and there is a considerable body of evidence that the tenants used the back door as a mode of egress and ingress. The plaintiff became a tenant to Anne Gavagan in August, 1917. He says that there was an agreement in writing, but none was produced by either side. He used the back door, of which he had the key, and, although it was not a necessary way, as the other houses in the terrace have no such means of access, it was a convenient way. The evidence, in my opinion, leads to the conclusion that there was a rough path from the gate to the avenue, a distance of 5 or 6 feet. John Gavagan, the husband of Anne Gavagan, gave evidence that the door was in existence in 1905, and continuel all the time, but he gave no evidence of the user. Anne Gavagan died on 28th February, 1919, having by her will, dated 30th August, 1915, devised, in the event of her leaving no issue, No. 25 to her nephew, Geoffey S. Higgins, a minor, and No. 26 to Joseph P. Higgins, her brother. Joseph P. Higgins was appointed, under the Settled Land Acts, a trustee to effect a sale of the premises, No. 25, and he also put up for sale the premises, No. 26, to which he was beneficially entitled.
It is useful at this stage to consider what was the true legal position as to the right of way. I have come to the conclusion, as the Circuit Judge did, that, as between Anne Gavagan and the plaintiff, who was her tenant, the plaintiff was entitled under his contract of tenancy to the use of the doorway and avenue, and that his user was not permissive in the sense that it could be forbidden at any time that Anne Gavagan might choose. The existence of the door, the tenant’s possession of the key, the user, the evidence as to the path, which, I think, continued until it was dug up and a tree planted where it had been, and the fact that coal, manure, and other materials can conveniently be carried only by this way, make me think a right of way was implied in the contract between landlord and tenant. In my opinion, the law as stated in Donnelly v. Adams (1) is in accordance with this view.
The premises, No. 26, were, therefore, bound in the hands of Anne Gavagan’s devisee, pending the tenancy created in No. 25 by Anne Gavagan. What is more difficult to determine is whether, apart from the right as attaching to the tenancy, a right of way is created by implication, in favour of the owner of 25, over the premises No. 26, which passed to a different devisee under Anne Gavagan’s will. Pheysey v. Vicary (2),relied upon by the defendant, is not a strong authority, as the case was settled, and Alderson B. seemed to think that the true test to ascertain whether the use of a carriage-way, which passed right in front of the defendant’s window, passed upon a severance by will, depended upon whether the way claimed was necessary to the convenient occupation of the plaintiff’s house. Erle C.J. in Pearson v. Spencer (3), dealing with the implication of a right of way arising by severance under a will, speaks of “that class of implied grants where there is no necessity for the right claimed, but where the tenement is so constructed as that parts of it involve a necessary dependence, in order to its enjoyment in the state it is in when devised, upon the adjoining tenement.” I cannot help thinking that the use of the back entrance was a substantial point of consideration in measuring the enjoyment of the premises, No. 25, and, looking merely to the previous user of the way as a measure of the convenience enjoyed, and not as any legal right incident to the tenant, I am of opinion that, by the will of Anne Gavagan, a right of way arose over the premises, No. 26, in favour of the owner of No. 25.
When, however, the various premises were put up for sale, viz., Nos. 22, 23, 25, and 26, Joseph P. Higgins was owner of Nos. 22 and 23 under the will of his father, Peter Higgins, he was owner of No. 26 under the will of his sister, Anne Gavagan, and he was trustee for the purposes of the Settled Land Acts, empowered to sell No. 25 on behalf of the minor, Geoffrey S. Higgins. Joseph P. Higgins, acting apparently in his own interest, as owner of No. 26, and contrary to what might be the interest of the minor, who was owner of No. 25, and in whose behalf he was selling these premises, had a condition inserted in the conditions of sale that the user of the premises, No. 26, had been merely by permission, and that the permission had been withdrawn, and that the way could be closed. A Mr. Lambert was anxious to purchase both premises, Nos. 25 and 26, to preserve, as he expressed it in his words, the right of way, but he did not succeed in buying the premises No. 26. He obviously considered that the use of the way was a matter of importance to the premises, No. 25. Mr. Lambert purchased the premises, Nos. 22, 23, and 25, and, as he candidly stated in his evidence, he did not consider that he was entitled to the right of way; but he was not in full knowledge of the plaintiff’s tenancy and its terms. There was not, however, in the conveyance from Joseph P. Higgins to Lambert, any release by Mr. Lambert of the right of way, nor were the premises granted in words which excluded the right of way, and it continued to be used by the plaintiff, who, after the conveyance, became tenant to Lambert. The conveyance was dated 7th October, 1919, and it granted the premises with the appurtenances. The premises, No. 26, sold at the same auction, were conveyed some time earlier, viz., on 3rd September, 1919, to Mr. Haydock. This conveyance was not made subject to any right of way in favour of the owners of the premises, No. 25. The user of the premises, however, continued, and no objection was made until January, 1927, when Mr. Haydock had a conversation with the plaintiff. The plaintiff had purchased the premises in his occupation on 25th June, 1925, and obtained a conveyance from Mr. Lambert without anything to show that the conditions of sale, under which Mr. Lambert purchased, treated the right of way as at an end. Mr. Haydock, who was about to sell his premises, sought to obtain an admission in writing from the plaintiff that there was no right of way attached to the side door, but, having failed, he raised a structure of wood in front of the gate, dug up the path, and planted a tree before the gate. On 18th February, 1927, Mr. Haydock assigned the premises, No. 26, to Mrs. Mulholland, the defendant.
The Circuit Judge considered that, by reason of the conditions of sale, Mr. Lambert might be estopped from claiming the right of way, and that the plaintiff, as claiming through Mr. Lambert, was in the same position, but he held that the right of way annexed to the plaintiff’s tenancy was kept alive, as he considered that the tenancy did not merge in the purchase of the fee-simple.
On appeal, the decision of the learned Circuit Judge was, in the result, affirmed. Mr. Justice Johnston and Mr. Justice Meredith both held that the right of way was created by implication under the will of Anne Gavagan, and that it passed to the plaintiff. They pointed out that it was impossible for a purchaser from Joseph P. Higgins to create an estoppel as against a purchaser from Joseph P. Higgins, acting, not in his personal capacity, but as trustee for the purposes of the Settled Land Acts, selling on behalf of Geoffrey S. Higgins, who was absolutely entitled.
In my opinion, the judgment of the High Court was correct, and ought to be affirmed. Once it is established that, by the will of Anne Gavagan, a right of way was created by implication in favour of the owner of No. 25Geoffrey S. Higginsthe plaintiff, as successor in title to Geoffrey S. Higgins, is entitled to this right of way unless it has been released, or unless some estoppel can be relied upon. There is no release in the conveyance to Lambert, nor are the premises comprised in the conveyance described so as to exclude the right of way. On the contrary, they are conveyed with the appurtenances. When the defendant seeks to rely upon an estoppel, a consideration of the facts shows that his ease comes to this: that the plaintiff purchased from an entire stranger, who made a mistake as to the existence of the right of way; for Joseph P. Higgins, in his capacity as vendor, exercising the statutory powers on behalf of Geoffrey S. Higgins, cannot be regarded as a common vendor to both parties merely because, at the same time, he conveyed lands, which he owned in his personal capacity, to the defendant.
In my opinion, the tenancy under which the plaintiff held the premises became merged in the fee-simple when he purchased in 1925; but he is entitled to the right granted by implication, under the will of Anne Gavagan, and there is no ground for raising any estoppel against him by reason of what occurred on the purchase of the premises by Mr. Lambert.
Steele v Morrow
[1923] 57 I.L.T.R 89
Andrews L.J.
Andrews, L.J.
This case came before me by way of civil bill appeal at the last Downpatrick Assizes. As it appeared to involve questions of some novelty and difficulty, I reserved judgment until I should have an opportunity of making some further research into the authorities than is possible on circuit. The plaintiff, Mrs. Mary G. Steele, claims damages for obstruction of a right-of-way alleged to exist over the premises of defendant, John Morrow, and to be appurtenant to or enjoyed with her house and premises situate at Marino, Co. Down. The material facts are as follows:—On 2nd March, 1891, a lease was made by a member or members of the Kennedy family to a Mrs. Elizabeth Shanks of three houses and certain land adjoining the same for the term of 999 years, subject to the rent of £4 per annum. On the premises so demised there are and have been for many years, possibly from the date of the erection of the houses, several gravelled and formed avenues and paths which, on the evidence, I am satisfied have been used since their formation by all the tenants for the time being in occupation of the three houses as occasion required without the consent or permission of any person. One of these avenues is at the front or east side of the houses, and leads to the public road; another is at the rere or west side, whilst the third, which may be more appropriately called a path, and over which the right-of-way is claimed in the present case, connects the two avenues mentioned on the southern side of the premises, and extends a short distance further to a road leading to the sea. In the year 1915 the plaintiff, Mrs. Steele, became tenant from year to year under Mrs. Elizabeth Shanks of the middle house, No. 2. Mr. George Quarry, solicitor, was at the same time tenant to Mrs. Shanks of No. 1, also apparently on a yearly tenancy. In the year 1918 Mrs. Shanks sold all three houses, the sales being carried out by sub-lease. John Morrow, the defendan t, purchased No. 1 for £410, subject to a rent of £1 9s. His deed is dated 25th January, 1918. Mr. Quarry, however, continued in actual occupation of this house until 1921. The plaintiff, Mrs. Steele, purchased No. 2 by deed, dated 23rd March, 1918, for the sum of £480, subject to a tithe rent. Both sub-leases are for a term of 969 years. The parcels comprised in the lease to Morrow include the site of the path over which the disputed right-of-way is claimed; but neither the parcels nor the map endorsed on the deed contain any reference to this path. The deed, however, does contain an express grant of a right-of-way over the above-mentioned road and over a path leading to the sea, and also express reservations for the lessor and the tenants of rights-of-way over a roadway or path along the shore and also over the said avenue or path at the front of the premises leading to the public road. The deed to the plaintiff contains an express grant of a right-of-way over the above-mentioned road and path to the sea, and also over the said avenue or path at the front of the premises leading to the public road, which is described in both parcels and map as an “Avenue in Common.” There is also in this deed an express reservation of a right-of-way over the roadway or path along the shore. After evidence had been given by plaintiff and her husband, the latter of whom remembered the property well for the past forty years, Mr. McGonigal, on behalf of the defendant, admitted that sufficient proof had been given by the plaintiff of user of the disputed path *89 to establish prior to 1918 the existence of a right-of-way in favour of the tenant of No. 2, but he contended that the legal effect of the sales and sub-leases of 1918 was to deprive the plaintiff as the tenant of No. 2 of that right. The legal contentions of the parties may be briefly summarised. Mr. Megaw, for the plaintiff, submits that it is immaterial that the deed to the defendant of 25th January, 1918, contains no reservation of the alleged right-of-way in favour of the lessor, or of his client as one of her tenants, for in fact there was at the date of that deed an outstanding yearly tenancy in No. 2 vested in the plaintiff to which was attached the right-of-way in question, and that the landlady, Mrs. Elizabeth Shanks, not being in possession, could not make a lease free from the right-of-way without derogating from her own grant. In support of his view, Mr. Megaw relied upon the well-known case of Thomas v. Owen, 20 Q. B. D. 225. This proposition was not seriously challenged by Mr. McGonigal, but he says that the right-of-way claimed was attached to the tenancy from year to year, and that this tenancy and all the rights appurtenant to or enjoyed with the premises so held were determined by the sub-lease to the plaintiff of 23rd March, 1918. Mr. Megaw replies to this by relying on the provisions of section 6 (2) of the Conveyancing Act, 1881, and says that the right claimed must, by virtue of that section, be deemed to be included in the demise effected by such sub-lease. Mr. McGonigal rejoins that this right cannot, in the present case, be deemed to be included, as the section referred to applies only if and as far as a contrary intention is not expressed in the deed, section 6 (4); and he contends that such contrary intention is sufficiently expressed by the fact that, whilst both sub-leases contain express grants and reservations of right-of-way over other paths and avenues, neither deed contains any reference whatever to the path in question or to the alleged right-of-way thereover. He says in effect that the principle of “ Expressio unius exclusio alterius ” applies, and that no such implication as is relied upon can arise. It seemed to me at the hearing that the difficulty in Mr. McGonigal’s way was that in order to exclude the operation of section 6 (2), it is necessary that the contrary intention should be “ expressed ” in the deed, whereas his argument is based not on anything expressed in the deed in reference to the alleged right-of-way, but rather on the fact that the deed omits all reference to this right-of-way whilst containing express grants and reservations of rights-of-way over other avenues and paths. Can the absence of all reference in the deed to the alleged right, coupled with a specific reference to other rights, amount to an expression of a contrary intention, so as to prevent the implication of a grant of such right under section 6 (2)? In my opinion it cannot. It might be otherwise if the words were such as are to be found in section 24 of the Wills Act:—“Unless a contrary intention shall appear by the will.” The necessity, by the terms of section 6 (4), for the expression of a contrary intention prevents the possibility of such contrary intention being deduced by mere inference. The conclusion at which I have arrived derives support from authority which I have discovered since returning from Circuit. In Hansford v. Jago, [1921] 1 Ch. 322, four adjoining cottages, which had belonged to one person but were let to several tenants, were conveyed to respective purchasers on the same day, and in each a grant was made of the particular cottage, “with the garden, outbuildings, and appurtenances.” It was held, first, that the right-of-way being de facto enjoyed by the tenants up to the date of the conveyances, passed by way of express grant under the word “appurtenances,” and, secondly, that, even if it did not pass under the word “appurtenances,” the right-of-way passed in any case by the words to be read into the conveyances under section 6 (2) of the Conveyancing Act, 1881, as the use of one of these words, “appurtenances,” did not suffice to exclude, by showing a contrary intention within section 6 (4), other words such as a “privilege or right enjoyed with the premises.” Russell, J., dealing with this latter point, at page 332, says:—“It is a very strong thing to say that when a section of an Act of Parliament provides that a conveyance of land having houses or other buildings on it is to be deemed to include a large number of different matters unless a contrary intention is expressed in the conveyance, the mere fact that the draftsman has elected to include one or two of these matters expressly in the conveyance should operate as an indication of an intention that the remainder should not be included.” If, then, the inclusion in a deed of a word such as “appurtenances” representing what I may call a genus of the rights referred to in section 6 (2) is not sufficient to show a contrary intention so as to exclude the operation of the sub-section, I am clearly of opinion that the mere inclusion in a deed of one or more species of t hat genus is not sufficient to show a contrary intention so as to exclude the operation of the sub-section, and thereby pre *90 vent the implied grant or reservation of another species of that or another genus of rights referred to in the sub-section. I, accordingly, hold that the plaintiff is entitled to the right-of-way claimed along the path referred to; and as the defendant has admitted the erection of the trellis work across the path, which clearly constitutes an obstruction of such right-of-way, I affirm the decree of the learned County Court Judge for one shilling with costs. Since preparing this judgment, Mr. Megaw has called my attention to the case of Cory v. Davies, decided by P. O. Lawrence, J., and reported in the Weekly Notes of 17th March last, since this case was argued before me at Downpatrick, [1923] W. N. 80. The case is useful as not merely recognising the authority of Hansford v. Jago, but also because of the learned judge’s own words that the fact that the leases contained certain express reservations in favour of the lessor did not prevent the Court from implying other appropriate grants and reservations. That is, as I understand it, the specific reference in the deed to the grant or reservation of one particular right does not prevent the Court from implying under section 6 (2) of the Conveyancing Act the grant or reservation of other rights. This, I think, entirely confirms the view which I have expressed above as to the true effect of Hansford v. Jago, and clearly establishes the plaintiff’s right to a decree.
Sean Flanagan v Catherine Mulhall
High Court (Circuit Appeal)
2 May 1984
[1985] I.L.R.M. 134
O’Hanlon J
O’HANLON J
delivered his judgment on 2 May 1984 saying: This is a right-of-way case in which the plaintiff claims an injunction to restrain the defendant, her servants and agents, from entering upon or trespassing on certain lands *135 comprised in Folios 2395 and 346 of the Register of Freeholds, County Offaly, formerly owned by Eugene Flanagan, and now vested in the plaintiff as his personal representative. The defendant counterclaims for a declaration that she is entitled to a right-of-way over the lands comprised in Folio 346 for all purposes. She, in turn, asserts her claim in her capacity as personal representative of Sean McCormack deceased, the former owner of lands comprised in Folios 2382, 8406 and 2988 of the Register of Freeholds, County Offaly.
The McCormack lands comprise two small holdings which are separated from each other by a large field, over 17 acres in area, forming part of the Flanagan holding. The shortest route across this field from one part of the McCormack holding to the other is 710 yards in length. The only other means of access from the McCormack farmhouse to the lands which are cut off in this manner is along a road a distance of about 2.2 miles. This road comes to an end on reaching the McCormack lands and is now, and has, for some considerable time past, been impassable over some distance at the end of its course.
The Flanagan lands were formerly owned by Anne Flanagan. She had two cousins — Eugene and Sean — the latter being the plaintiff in these proceedings. Eugene was born in or about the year 1908 and Sean in 1911, and Anne appears to have been a good deal older than the two brothers. They eventually came to live with her, and helped in running the farm, but Eugene was living with her much longer than Sean, and as far back as 1939 she settled the farm on herself for life with remainder to Eugene absolutely. Sean’s period of living on the farm ran from about 1948 to 1958. Anne died before 1955, and in that year Eugene was removed to Portlaoise Mental Hospital and was institutionalised for the remainder of his life. He was made a ward of court in or about the year 1958 and his brother, Sean, was appointed as committee to manage his affairs. He did so, but apparently never took up residence on the lands again after leaving them in or about the year 1958.
The McCormack lands have been in the family for about three generations and the upper lands (by which I understand the lands which are furthest away from the farmhouse) were said to have been acquired in 1885.
The claim by the McCormack interest to a right-of-way over the Flanagan lands has several unusual features. When asked to specify the terminus a quo , two different points were indicated on the boundary of their lands near the family home. One of these was stated to be the common starting point for the exercise of a right-of-way on foot only. The other was stated to be the starting point for the exercise of a right-of-way with cattle, horse and cart, or farm machinery. When asked to specify the terminus ad quem , three different points on the far boundary were indicated, two of them being alternative termini for the pedestrian right-of-way claimed, and the third being the terminus for cattle, horse and cart, and farm machinery. The two different rights-of-way claimed cross at a point about mid-way across the field, and again at the approach to the far boundary.
The second unusual feature is that there are no visible tracks or paths crossing the field. It is simply an open field, covered with grass, with a depression running through part of it near the centre, and with some rocks or *136 stones along the line of this depression. There are some tracks visible in the photographs which appear to have been made by cattle, but which do not run from one boundary to another and which therefore appear to have no relevance in the case. An engineer called to give evidence on behalf of the McCormack interest claimed that he could detect a different shading in the colour of the grass along the line of the right-of-way claimed by the defendant, but the plaintiff’s engineer said that he found no evidence of this kind on his inspection of the field.
The third unusual feature is that there is no gate leading from the McCormack lands into the Flanagan lands at the boundary which adjoins the McCormack homestead. On the far side there is one gate suitable for the passage through of cattle and farm machinery as well as pedestrians, but it was conceded that this had only been erected in recent times — probably within the last ten years — and the evidence for the defendant was to the effect that prior to the erection of the gate there was a gap in the same position, fenced off with wire secured to a bush. At three of the suggested termini the defendant said that access was gained to and from the right-of-way claimed by means of a stile, but the photographs put in evidence were, in my opinion, equally consistent with boulders in haphazard juxtaposition which could be conveniently used for crossing over the boundary at those points, as with a stile in the conventional sense of a series of steps deliberately constructed for the purpose. There is also a barbed wire fence to be negotiated when crossing the stiles. At the starting point claimed for use by cattle, horses and carts, and farm machinery, there is a boundary wall on the McCormack side composed of large boulders and wooden posts, with no visible gap whatever and the evidence was to the effect that whenever passage was required through this point it was achieved by demolishing the loose boulders, replacing them temporarily with a post and wire fence, and rebuilding them again when the gap was no longer required.
Finally, it is of interest to note that documents put in evidence which related to a land judges’ sale of the Flanagan lands in 1893 include a map on which is marked a public right-of-way across the relevant field but only a third or less of its course could be said to coincide with any of the rights-of-way now claimed by the defendant. One of the older inhabitants of the area, who was called as a witness, said: ‘It was a Mass path in times gone by — it doesn’t link up with any public roads’. On the same land judges’ map is marked another private right-of-way on foot only, in favour of Edward Higgins, tenant of adjoining lands, over part of the said field to link up with the public right-of-way, but there is no suggestion in the documents or map that at that time any other right-of-way such as is now claimed, existed over the said lands.
The claim to a right-of-way was claimed by prescription at Common Law; alternatively, by the operation of the Prescription Act; or under the doctrine of lost modern grant; or, finally, as a way of necessity.
As to the evidence of user on which the claim was based, Kevin McCormack, who was born in 1938 and is a brother of the defendant, testified that he lived on the McCormack holding up to 1961; that what were called the upper lands *137 were used for mixed farming — hay, tillage, and grazing dairy cattle. He said he crossed the Flanagan field daily to milk the cows and bring back the milk, and for cutting hay and other crops at certain times of the year.
This evidence was corroborated by other witnesses from the area who said they had seen members of the McCormack family walking across the field regularly, and at certain times of the year driving cattle to and from the upper lands, and bringing farm machinery across when this was needed for tillage and harvesting.
It is not necessary to recite this evidence in detail, as it was, in my opinion, of such a character as would in normal circumstances be sufficient to support a claim to a right-of-way for all normal agricultural purposes across the Flanagan lands for the benefit of the McCormack lands which are divided by the field referred to in these proceedings. Furthermore, having regard to the photographs which have been put in evidence, and which show the present condition of the old road which forms the only other means of access to the separated lands, it seems clear that this road has fallen into disuse over a long period and that the McCormacks must have been traversing the Flanagan lands for all purposes connected with the use of the uppr fields for many years past.
It remains to consider whether their claim to a right-of-way is defeated by the other circumstances which are peculiar to this case, and most of which have already been enumerated.
The absence of a defined path would not, per se, be fatal to their claim. The authority for this proposition is the case of Wimbledon and Putney Commons Conservators v Dixon, (1875) 1 Ch D 362.
James LJ, said (p. 368):
I am unable to agree with the view which he ‘(the Master of the Rolls)’ apparently formed, that there could be no right of way at all in respect of what are called the tracks over the common. I am not at all prepared to assent to that as a true statement of the law of the country. If from one terminus to another, say from the gate here to the end of a road 200 yards off, persons have found their way from time immemorial across a common, although sometimes going by one track and sometimes by another, I am not prepared to say that a right of road across the common from one terminus to the other may not be validly claimed, and may not be as good as any formed road …
Mellish LJ, concurring, said (p. 369):
If you can find the terminus a quo and the terminus ad quem , the mere fact that the owner does not go precisely in the same track for the purpose of going from one place to the other, would not enable the owner of the servient tenement to dispute the right of road.
In the Irish case of Donnelly v Adams [1905] 1 IR 154 the claim made was that a right-of-way arose by implication on the making of a lease by the lessor to the lessee, over certain lands which were retained by the lessor. Consequently it was not a claim to a right-of-way arising by prescription, but the statements of principle contained in the judgments are in fairly general terms.
Fitzgibbon LJ, said (p. 181): *138
Every lawful way must be capable of identification; it must have a terminus a quo and a terminus ad quem . But it is not essential to a way that there shall be a beaten track between its termini. The precise line which a person must follow in exercising a right-of-way need not always to the same; frequently the owner of the servient tenement may vary it from time to time, as where there is a right to cross a field which is sometimes in tillage. The reasonable use of the servient tenement, consistently with the servitude, may entitle the owner of it to require the dominant owner to diverge, and the easement may co-exist with the right of the owner of the servient tenement to vary the path from time to time.
However, although the courts have been prepared to give effect to a right-of-way between defined termini, even when the path linking them has not been clearly defined, there has always been an insistence on a defined terminus a quo and terminus ad quem . In the present case, no less than five points of access to the plaintiff’s lands are asserted by the defendant for the purpose of exercising a right-of-way across them. Mellish LJ in the Wimbledon Common case, (supra), said at p. 369:
No doubt, if a person has land bordering on a common, and it is proved that he went on the common at any place where his land might happen to adjoin it, sometimes in one place and sometimes in another, and then went over the common sometimes to one place and sometimes to another, it would be difficult from that to infer any right of way.
I think the facts in the present case are not far removed from that kind of situation, as referred to in the judgment of Mellish LJ. I do not find the evidence regarding the termini, as claimed by the defendant, very convincing. If one is using a right-of-way every day of the year, as was claimed in the course of the evidence, and sometimes several times a day, even if it only for foot passage, one would expect to find a gate or proper stile at each end, and not merely a collection of boulders surmounted by a barbed wire fence which must also be negotiated. If another right-of-way is used for the passage of cattle, carts, and farm machinery from one part of a farm to the other, from time immemorial, one would expect a permanent opening to be left in the boundary fence, with a gate which could be opened and shut at will, and it would be a most unusual procedure to knock down and build up a wall of loose stones whenever such a right of passage had to be utilised. If the right of passage across the field was used as extensively as was claimed by the defendant’s witnesses, and continuously over a very long period of time, it seems extraordinary that there are not well-worn paths in the field leading from the defined points of entry to the defined points of exit.
My conclusion, in relation to the evidence of user, is that the McCormacks did, in fact, cross and recross the field from time to time, in connection with their user of the upper fields, but did so less frequently than the evidence would suggest, and in a haphazard manner as to where they entered and left the Flanagan lands. The evidence indicated that other persons living in the neighbourhood were also in the habit of taking short-cuts across the Flanagan lands, but entering and leaving them at various points to suit their own convenience.
*139
I have a strong impression from the evidence, that the control and supervision exercised over the Flanagan lands for many years past have been of a very desultory kind. They were being farmed by an elderly spinster for many years before Eugene Flanagan became owner some time prior to 1955. He was a person under mental disability and was confined in a hospital for such cases from 1955 onwards leaving the farm to be managed by remote control by other members of the family, and the lands were let out for grazing from the early 1960s to persons who lived at a distance from the lands.
In this situation, I think that adjoining landowners became rather free and easy in the use they made of the Flanagan lands over the last 30 or 40 years. A gate opening from the Flanagan lands into a cattle pen on the McCormack lands was put up for the first time by the McCormacks in the last ten years or so. The McCormacks then proceeded to erect a surface water pipe, running across the Flanagan lands from one section of their own holding to the other, and in these proceedings commenced by asserting a right to maintain this pipe on their neighbour’s lands. This claim was not pursued when the case came on for hearing, but it does seem to me to illustrate what was happening in relation to the Flanagan lands in the absence of an owner who was living on the lands and in possession of all his faculties and managing and running them in a competent manner.
In Diment v N.H. Foot Ltd [1974] 2 All ER 785, the circumstances of the case were rather similar to those in the present case — a right-of-way being claimed across a field which separated the defendant’s lands from the public road. The only means by which vehicles could gain access to that part of the defendant’s lands from the public road was across the field in question, and the defendant crossed the field from six to ten times each year from 1938 to 1970, when his entitlement to do so was first challenged by the plaintiff. There were then track marks of vehicles on the field. It was held by Pennycuick VC that the user of the way over the field was sufficient in extent and regularity to be capable of creating a right-of-way. He held, however, that the acts of user had not come to the knowledge of the plaintiff up to the year 1967, and that it was not possible to impute to her knowledge of the user. He further held that where an owner employed an agent to act in connection with his property, the burden of establishing the agent’s knowledge or means of knowledge rested on the party wishing to establish it.
In the present case the owner of the Flanagan lands was out of possession for almost thirty years prior to his death, and was found to be of unsound mind at the commencement of that period. Prior to his succeeding to the interest of his elderly cousin, Annie Flanagan, he had been managing the farm for her for many years. His brother, Sean Flanagan, was also living on the farm for about ten years, from about 1948 to 1958. He said he was friendly with the McCormacks;
I saw them cross (the field) on foot. I would seldom see them — only if up herding cattle; not many times — I wouldn’t be up there much — on foot only — not driving cattle, or carrying milk etc. I would say they went from A to B. There was no point at that time. Stile and pump at Point B … would go herding — short-cut when they had cattle on that side.
*140
His evidence was that he would be in the field once a week if cattle were there, and the evidence established that the field was never tilled, but was used only for grazing purposes.
In these circumstances I am unwilling to impute knowledge to the owner of the Flanagan lands of such user as may have been made of the field by the McCormack family over the last thirty years, save knowledge by Sean Flanagan that the McCormacks occasionally passed on foot across the field to reach the upper fields of their own holding. It may be significant that Kevin McCormack said he had not seen the alternative route to their lands, by the back road, being used for about thirty years. This would mean that, on his evidence, the cesser of use of that longer route to the upper fields coincided more or less with the owner of the Flanagan lands being found to be of unsound mind and being lodged in a mental hospital. Going back beyond that period of thirty years I am not satisfied that the evidence as to terminus a quo and terminus ad quem , or the evidence as to the extent of user, was sufficient to support a claim to a right-of-way or rights-of-way with the precision and certainty which should normally be required in this type of case where adverse rights are claimed by one landowner over the lands of another.
For these reasons I have come to the conclusion that I should uphold the decision of the learned Circuit Court judge, and I propose merely to affirm the order made by him in relation to the claim and counterclaim in all respects and to dismiss the appeal brought by the defendant.
Todd v. Cinelli
High Court, March 5, 1999,JUDGMENT of Mr Justice Kelly delivered the 5th day of March 1999.
BACKGROUND
1. The Plaintiffs are husband and wife. They have three daughters aged 12, 10 and 7 years respectively.
2. In 1992 the Plaintiffs purchased a house called “Quinton” situate at Greys Lane, Howth, County Dublin. It was a three bedroom semi-detached house with gardens. The total area of the house and gardens is in excess of 7,000 sq ft. The semi-detached house attached to “Quinton” was known as “Woodview”.
3. The first and second Defendants’ own “Woodview”. The remaining Defendants were involved in the demolition of that house on the instructions of the first and second Defendants. They are a building company, plant hire company, architect and engineer respectively. All Defendants are sued as wrongdoers arising out of their involvement in the demolition of “Woodview”.
4. Howth is a sought after location for private dwellings and Greys Lane in turn is situate in an attractive part of that district. This pair of semi-detached houses had a pleasant appearance, good views and attractive gardens.
5. Prior to purchasing “Quinton” the first Plaintiff checked the planning register of the local authority to ascertain if there were any planning permissions extant affecting “Quinton” or its adjoining house. He discovered that there was indeed a planning permission in existence in respect of “Woodview”.
6. This permission had been obtained in the name of C. Cinelli on the 18th January, 1991. The permission was for a “first floor domestic extension and alterations to existing elevation to “Woodview”. A building bye-law approval was obtained in respect of this development on the 12th February, 1991.
7. The first Plaintiff also went to see the first named Defendant at his business premises at Parnell Street in Dublin. He did so with a view to enquiring as to Mr Cinelli’s intentions concerning “Woodview” and the planning permission which had been granted in respect of it. It is to be noted that at that time the Cinellis were not resident in “Woodview” nor indeed did they ever reside there to the present day.
8. Mr Cinelli indicated that he intended to do the work which was covered in the planning permission when he would have the money to enable him so to do.
9. In July 1992 the Plaintiffs bought “Quinton”. They had it rewired, redecorated and a new heating system was installed.
THE DEMOLITION
10. Between 1992 and 1995 “Woodview” remained unoccupied. It became run down, was vandalised and was a source of nuisance to the Plaintiffs.
11. In June 1995 the existing rear and side extensions of “Woodview” were removed as were trees in its garden. The Plaintiffs became alarmed at this. When Mr Cinelli was approached concerning this he indicated that he was merely taking down the flat roof. He said “I know that I can’t demolish the house. I would like to but I know that I can’t”. The two flat roof extensions were then taken down.
12. In November, 1995 further demolition was carried out. However, the real mischief which has given rise to this action occurred on the 23rd November, 1995. Total demolition was effected to “Woodview” on that date. It was brought about by the use of a caterpillar type Hitachi demolition machine. The evidence satisfies me that this work was done in an entirely sub-standard way. The demolition was completed in a few hours. The evidence of the Plaintiffs’ engineer Mr Markham and their neighbour Mr Cunningham (who also happens to be a builder) who saw what went on, satisfies me that the method of demolition was abnormal and entirely contrary to proper building practice. It is now accepted by the Defendants that this constituted tortious activity on their part and that the Plaintiffs have suffered loss and damage as a result.
13. No notice of the Defendants’ intention to carry out this hurried demolition was given to the Plaintiffs. The excuse for not giving notice was that the Defendants’ architect did not have time to do so.
14. The demolition was discovered in the afternoon of that day when Mrs Todd arrived home after her work as a schoolteacher. Not surprisingly she was extremely shocked when she saw what had happened. So also was her husband. That night they spent the first of many miserable nights which were directly attributable to the wrongful activity which took place on that day.
15. I need not rehearse all of the details of what has ensued since then because my only task here is to assess damages to which the Plaintiffs are undoubtedly entitled. The liability issues disappeared out of the case only on the first morning of the trial when it was accepted that the Plaintiffs were entitled to recover damages against the Defendants in respect of the matters of which they complained.
THE DAMAGE
16. I am satisfied that the Plaintiffs’ premises were damaged and to a not insubstantial degree by the activities of the Defendants.
17. I accept the evidence of Mr and Mrs Todd as to the effects which these events have had upon them, their family, their social life and their home. Apart from the shock of the initial demolition they have had to endure a good deal of misery, upset, embarrassment and poor living conditions.
18. I have had both photographic and video evidence of the damage which has been done to their property which speaks for itself.
19. It is clear that substantial repairs will have to be effected to the Plaintiffs’ house. That has been clear for some time but they have not yet been carried out. This is so notwithstanding that over three years have passed since the unauthorised and improper demolition took place. A criticism has been made of the Plaintiffs for not having remedial works carried out before now, particularly since they were in receipt of in excess of £28,000 on foot of an insurance claim which they made arising from the damage to their premises. That money has not been expended but has been held jointly with a financial institution which holds a mortgage over “Quinton”.
20. Two reasons were given by the Plaintiffs for the delay in carrying out the repairs. The first was that they did not wish to remove the evidence of the effects of the Defendants’s wrongdoing. I do not accept that that justified a delay in the carrying out of the work particularly since there was extensive video and photographic evidence available to me to demonstrate what that position was. The second reason put forward for the delay in my view is a valid one. The Plaintiffs’ semi-detached house has had its adjoining house demolished. The form of demolition was such as to cause damage to the Plaintiffs’ property. To this day the Cinellis have not made their minds up as to what they will do with “Woodview”. The site has remained derelict. The Cinellis obtained a planning permission from An Bord Pleanala in August, 1996. This was for a semi-detached house. The Plaintiffs appealed that permission to An Bord Pleanala. They did so because of their concern as to the effects of such a construction on the structural stability of “Quinton”. It was in my view not unreasonable for the Plaintiffs to bring that appeal and I will allow them the £500 fees which were incurred in that regard.
21. A second planning permission for a detached house was obtained by the Cinellis in September 1997. If this development is to be carried out in accordance with that permission there will be a 2.3 metre section between the new dwelling house and the Plaintiffs’ existing house. The engineering advice which has been given to the Plaintiffs is that they should not effect repairs to their house until they know precisely what the Defendants propose to do with the vacant site at “Woodview”. This is because of the implications of such a development for “Quinton”.
22. Given the unhappy situation which has existed with the Cinellis, their inability to indicate what they propose to do with “Woodview”, and the advice which the Plaintiffs had, I do not consider that the Plaintiffs can be criticised with justification for waiting until such time as they get a firm indication as to what the Defendants plan to do to their premises. Indeed, the Defendants failure to even now indicate what they are proposing to do makes my already difficult task in assessing damages more complicated.
AGREED DAMAGES
23. Fortunately, agreement was reached in respect of a number of matters and I will deal with them now before turning to consider the items which remain in dispute.
(a) Costs of repairs to be carried out at the Plaintiffs’ premises
24. These costs have been agreed in the sum of £25,000.
(b) Miscellaneous expenses.
25. These have been agreed at a sum of £800.
(c) Fees expended by the Plaintiffs on the planning appeal.
26. These have been agreed at £500. I have already indicated that the Plaintiffs are entitled to recover this since it was not unreasonable for them in the circumstances to oppose the planning permission which had been granted to the Cinellis.
(d) Costs of rental accommodation while repairs are carried out.
27. It is agreed that the repairs will take of the order of eight weeks to complete. Whilst there was some dispute between the two valuers as to what it would cost to find alternative accommodation during that period, ultimately they effectively agreed with each other that the appropriate sum is £2,500 and I so award.
(e) Professional fees to date and into the future.
28. These have now been agreed at £11,000.
29. I now turn to the areas of controversy.
DISPUTED DAMAGES
A. Contingency monies
30. It is agreed between the parties that there should be some contingency sum in respect of the repairs but there is a dispute between the experts as to its quantum. Having considered the evidence of the experts I have come to the conclusion that the appropriate sum to award in respect of a contingency sum is £5,000.
B. Diminution in value of Plaintiffs’ House
31. The Plaintiffs contend that even when all of the repair and redecoration work is carried out to their house it will still suffer from a diminution in value in respect of which they are entitled to be recompensed in these proceedings. Two valuers gave evidence. Mrs Emer Byrne of Lisneys testified for the Plaintiffs. Mr Anthony Pain, who runs his own firm of chartered surveyors and estate agents, gave evidence for the defence.
32. Five different valuations were put to the Court by Mrs Byrne on behalf of the Plaintiffs. They were as follows.
(1) The current open market value of the property as it stands was expressed to be £175,000.
(2) The current open market value of the property if the adjoining premises had not been demolished and were adapted and extended according to the planning permission granted in December 1990 was put at £290,000.
(3) The current open market value of the Plaintiffs’ property if the adjoining property had merely been left as it was, was also put at £290,000.
(4) The current open market value of the property having regard to the adjoining premises having been demolished and a new semi-detached house constructed on the site subject to the planning permission granted in March 1996 was put at £230,000.
(5) The current open market value of the property having regard to the adjoining property being demolished and a new detached house constructed on the site of the original house subject to the planning permission granted in September 1997 was put at £200,000.
33. For the Defendants Mr Pain gave the following evidence.
(a) He put the value of the Plaintiffs’ property immediately prior to the demolition of its adjoining house at £110,000.
(b) The value of the same property immediately subsequent to the demolition was put at £90,000.
(c) The present market value of the Plaintiffs’ property was put at £230,000.
(d) The market value of the Plaintiffs’ property with the repairs carried out was put at £250,000.
(e) The value of the Plaintiffs’ property assuming that the adjoining property is reconstructed to a similar style and size and on the understanding that the remedial structural works are made good was put at £275,000.
34. The Defendants accept that the Plaintiffs have suffered a diminution in the value of their property and that this will continue even after works of repair and redecoration have been completed. But there is a major dispute as to the quantum of that diminution.
35. In general I found the evidence of Mrs Byrne more persuasive than that of Mr Pain. Two factors influenced me in this view. First, Mrs Byrne referred to a series of comparator houses in the area which had been sold between December, 1996 and February, 1999. Mr Pain did not provide any evidence of comparators. Secondly, having seen the photographic evidence I simply cannot accept his view that there would be a difference of only £25,000 in value in respect of “Quinton” between the positions described at (d) and (e) above.
36. Mrs Byrne in the course of her evidence suggested that the diminution in value to the Plaintiffs’ property was attributable to three factors. They were:
(a) Doubts concerning its structural stability
(b) Difficulties which a prospective purchaser may have in obtaining
finance and
(c) The change in appearance brought about as a result of the removal of its matching pair
37. I am of opinion that there is validity in all three of these propositions. I will consider each in turn.
38. In order to ensure that there is no question of double recovery on the part of the Plaintiffs I must attempt to place a valuation upon their house on the assumption that the repairs in respect of which I am awarding £25,000 to effect will be carried out. The base figure for assessing the diminution in value must therefore be the value of the Plaintiffs’ house with the repairs fully effected. Even in such circumstances however, I accept that there will still remain in the mind of a prospective purchaser a doubt concerning the structural stability of “Quinton” particularly while “Woodview” remains in its present condition.
39. I have already alluded to the difficulty presented to me by the fact that I have no indication as to when, if ever, work will be carried out on “Woodview”.
40. At the outset of the hearing Mr Finnegan SC appeared on behalf of the Cinellis. Neither of the Cinellis, nor indeed, any of the other Defendants gave evidence before me. Mr Finnegan was careful in his choice of language in telling me what the Cinellis propose doing. He said that it was their present intention to construct a semi-detached premises at “Woodview”. However, they were unable to give any commitment concerning this course of action, nor could they indicate even in a rough way the timescale within which such work might even be started never mind finished.
41. Given this unsatisfactory situation I have come to the conclusion that as a matter of reasonable probability no work will be carried out on “Woodview” at least for the next few years. Even if work is done, there is not, as a matter of probability, a likelihood that such work will necessarily involve the construction of a semi-detached house. If such a building was constructed it would, of course, address in a substantial way the three elements mentioned by Mrs Byrne as contributing to the diminution in value of the Plaintiffs’ house. As I have no evidence which would support the contention that this work will be undertaken in a reasonable period of time I have to approach the question of the diminution in valuation on the basis that “Woodview” will remain in its present condition for the foreseeable future. However, I think it unlikely that “Woodview” will forever be left as a derelict site and I must build into my assessment of damages under this heading a factor which will take into account that at some stage the derelict site will have a dwelling house of some sort built upon it.
42. I will shortly measure in terms of a sum of money the diminution in value which the Plaintiffs’ house has suffered. Before doing that I will assess in terms of percentages the extent to which that diminution is contributed to by each of the three factors relied upon by Mrs Byrne.
43. I am satisfied that even with repairs carried out to it, (and bearing in mind that “Woodview” will remain as it is for the foreseeable future), there will still remain in the mind of a prospective purchaser of “Quinton” a question concerning its structural stability. Even if a competent consulting engineer certifies its stability, it seems to me that a prospective purchaser will still have a question mark in his or her mind concerning the house and account must be taken of that. I am of opinion that 25% of the diminution in value can be attributed to this cause.
44. I accept the evidence of Mrs Byrne that a financial institution will also have a wariness about advancing money in respect of this house given its history. I am of opinion that 25% of the diminution in value can also be attributed to this factor.
45. The major contributor to the diminution in value must however, undoubtedly be the extraordinary appearance of the Plaintiffs’ house in the absence of its matching pair. It looks odd and in my view would not do anything to encourage a prospective purchaser. I attribute 50% of the diminution in value to this factor.
46. The Defendants contend that the Plaintiffs are not entitled to have taken into account in the assessment of damages any diminution in value of the Plaintiffs’ premises by reason of its changed appearance. In this regard they rely upon the decision of the Court of Appeal in England in Phipps -v- Pears [1964] 2 All ER 35. The facts in that case were that in about 1930 a house, no. 16, one of two adjacent houses in common ownership was rebuilt. One wall was built close against the adjacent no. 14. Thirty years later no. 14 was demolished by its then owner, the Defendant. This left the adjoining wall of no. 16, which was rough and unpointed, exposed to the weather. During the next winter, frost caused cracks in the wall. The Plaintiff, who was successor in title of the owner who built no. 16, sought to recover from the Defendant for the damage done to the wall. He claimed an easement of protection and said that he was entitled to protection for the wall by virtue of the general words implied by Section 62 of the Law of Property Act, 1925 in the conveyance of no. 16 to him. The Court of Appeal rejected the claim. It held that there was no right known to the law to protection from no. 14 for the wall of no. 16 against exposure to weather. Accordingly, no such right or advantage had passed to the Plaintiff under the relevant statutory provisions. In delivering the principal judgment Lord Denning M.R., said:-
“There are two kinds of easement known to the law: Positive easements, such as a right of way, which gives the owner of land a right himself to do something on or to his neighbour’s land: and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways onto the adjoining building or the adjoining land, and is thus doing something to the neighbour’s land, exerting a thrust on it; see Dalton -v- Angus per Lord Selborne, L.C. But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution, because the law has been very chary of creating any new negative easements.
Take this simple instance: suppose you have a fine view from you house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if you neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as the right to a prospect or a view: see Bland -v- Moseley . The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view . Such a covenant is binding on him by virtue of the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant; but it is not binding on a purchaser who has no notice of it, see Leech -v- Schweder .”
47. The Master of the Rolls then went on to give other instances similar to those already mentioned. He then said:-
“The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development, see Dalton -v- Angus per Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would put a break on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise, every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather.”
48. It seems to me that that case is far removed from the present one both on its facts and in the underlying rationale which supports it.
49. In the present case I am not merely dealing with adjacent houses but with a pair of houses which were built as one. At the commencement of these proceedings by consent, I made declarations against the first and second named Defendants as to the right of support to which the Plaintiffs’ house is entitled. That was an acknowledgement by them of an entitlement which has been lost to the Plaintiffs as a result of their wrongful activity.
Phipps -v- Pears did not concern a right of support. In this regard see the observations of Blackett – Ord V.C. in Bradburn -v- Lindsay [1983] 2 All ER 408 at 414. This aspect of the matter was also dealt with by Finlay C.J. in Treacy -v- Dublin Corporation [1993] 1 I.R. 305 at 312 where he said:-
“I accept, having regard to the decision in Phipps -v- Pears, and to the principles outlined in that decision, that there is not a separate easement of a right to protection from wind and weather. I am satisfied, however, that where as in this case work is being carried out the consequence of which will be to remove a support which previously consisted of a wall between two terraced houses and which by reason of the existence of the rooms on the other side of it, was immune from any weather, that it is unreal to limit the requirement of giving back support to putting up some form of shoring or buttress which would leave a wall, having regard to the age of the house, likely in a very short time by wind and weather to become unstable and to cease to be a support.”
50. Secondly, the basis underlying the decision of the Court of Appeal in Phipps v. Pears is that legitimate development would be hampered if the Plaintiff succeeded in that case. In the instant case I am not at all dealing with legitimate development on the part of the Defendants. In fact the converse is true. It is accepted by the Defendants that they required a planning permission to enable them to demolish “Woodview”. They neither sought nor obtained such a permission. Indeed, had they sought such a permission the Plaintiffs would have had statutory rights to be heard in respect of it. They were deprived of that right. Indeed it is almost inconceivable that the planning authority would have given permission for a demolition of the type in question. The Plaintiffs are now at a loss because of this activity and it appears to me that in these circumstances they are entitled to recover in respect of the diminution in value attributable to the loss of appearance of their house brought about the wrongful activity of the Defendants. They are therefore, in my view, entitled to recover in its entirety the diminution in value as a head of damages.
51. In order to establish the diminution in value in money terms, I must first fix upon the current value of the Plaintiffs’ house assuming that the £25,000 worth of works are carried out to it. Having considered the evidence of the valuers I have come to the conclusion that the current open market value of the Plaintiffs’ house as it stands is £190,000. With £25,000 worth of repairs carried out to it that value will in my view increase to a sum of £200,000. I do not accept Mrs Byrne’s view that the repairs would only bring about what she described as a minuscule improvement in the value of the house. Neither do I accept Mr Pain’s view that the expenditure of £25,000 on repairs would bring about an improvement in value to the tune of £20,000.
52. On the basis that the open market value of the Plaintiffs’ house in its repaired state is £200,000 it appears to me that the Plaintiffs are entitled to the difference between that sum and what the house would have been worth if the adjoining property had not been demolished but remained as it was. This approach would both accord with the facts of this case as I have found them and also with the general rationale underlying the award of damages namely to put the Plaintiffs in the same position as they would have been in had the wrongful act not occurred.
53. On the basis of the evidence that I have heard I am of opinion that the Plaintiffs’ house would be worth £280,000 were it not for the demolition of “Woodview”. The loss of value is therefore £80,000. However, account must be taken of the fact that “Woodview” in the long term will not be left in the state in which it now is. Both valuers accept that that is so. But I cannot say when this change will be effected or the form that it will take. It seems to me therefore, that I must make some deduction from this sum to recognise these facts and I propose therefore to reduce the diminution in value to £65,000.
54. I therefore award the Plaintiffs £65,000 in respect of diminution in value attributable to the wrongful activities of the Defendants.
GENERAL DAMAGES
55. Each of the Plaintiffs have a claim in respect of general damages concerning the upset, inconvenience, stress and general misery to which they have been subjected. I accept their evidence concerning the effect which all of this has had upon their lives. Their quality of life has suffered in a substantial way. I am also satisfied that as a matter of probability the strain that was created upon the relationship between Mr and Mrs Todd and which resulted in their temporary separation was a direct result of the very sub-standard living conditions which they have had to endure as a result of the activities of the Defendants.
56. In the case of Mr Todd I award him £10,000. In my view the strain upon Mrs Todd was even greater. This is probably attributable to the fact that she had to spend a greater period of time at home than did Mr Todd. Furthermore, when he went to work at least he was away from the house and all attendant upon it. When Mrs Todd went to work as a teacher at the school, I am satisfied from her evidence that she was subjected to taunts and jeering at the hands of schoolchildren of the type which she described in evidence. In her case therefore, I propose to award her £12,000 under this heading.
PERSONAL INJURIES
57. Although a suggestion was made to the effect that Mr Todd sustained some stomach illness as a result of strain, that claim was, in my view quite properly, not pursued in any serious way.
58. In the case of Mrs Todd however the position is quite different. I am quite satisfied on the uncontroverted evidence of Dr Rosemary Coleman, Consultant Dermatologist, that Mrs Todd began to complain of atopic eczema in April, 1997. I am satisfied on the basis of her evidence that Mrs Todd had a genetic pre-disposition to this condition. However, prior to the activities in suit she was asymptomatic. The triggering of her symptoms were, as a matter of probability, brought about by the stress sustained by Mrs Todd to which mould allergy may have been a contributing factor. The Plaintiffs’ condition has gradually improved and she is now free from the condition and indeed has been for the past six months. I have seen photographic evidence of the skin condition and I accept the evidence given by Mrs Todd and the doctor concerning it. It was an unpleasant and embarrassing condition and I propose to award Mrs Todd £15,000 damages in respect of it. The condition is now cleared but Mrs Todd is required to continue with the type of skin care regime which was described by the doctor in the course of her evidence. This involves daily oily baths, the use of soap substitutes and creams. The condition could flare up in the future particularly if there is stress or infection. It seems to me therefore that the Plaintiff is entitled to an award of damages into the future in respect of these personal injuries to take account of the daily skin care regime which she has to conduct and the prospect of a flare-up of the condition in future. I therefore propose to award a further £7,500 to Mrs Todd under this heading.
Aggravated Damages
59. The Plaintiffs suggest that they are entitled to an award of aggravated damages to take account of the circumstances in which they sustained the injuries in suit.
60. The law on this topic in this jurisdiction is set forth in the decision of the Supreme Court in Conway -v- Irish National Teachers Organisation [1991] 2 IR 305. Dealing with the question of aggravated damages the Chief Justice summarises the principles applicable in respect thereof as follows:-
“Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or (b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or (c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged Plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a Plaintiff who has been wronged, and in part also in recognition of the cavalier or outrageous conduct of the Defendant”.
61. I have come to the conclusion that a number of the factors referred to by the Chief Justice in the passage which I have just quoted are present in this case. The Plaintiffs are in my view entitled to a modest sum by way of aggravated damages in recognition of the added hurt or insult to them as a result of the conduct of the Defendants.
62. Amongst those factors are: (a) The demolition was carried out suddenly, without warning and in violation of all of the appropriate safeguards. (b) The demolition was carried out at a time when Mr Cinelli clearly knew that he had no entitlement to do it. His professional advisers must also have been aware of this fact yet nonetheless proceeded with the demolition in such a way as to entirely deny the Plaintiffs their rights under the planning legislation. (c) The demolition was carried out notwithstanding the prior representation that the demolition would be only partial and that the works of reconstruction would be completed by Christmas of that year. (d) The site has been left as a wilderness since the time of destruction. This has inconvenienced the Plaintiffs much more than was necessary. Whilst none of the Defendants gave evidence Mr Cinelli’s Solicitor did so. On the basis of the evidence which he gave me I am satisfied that the Cinellis’ financial position was such that had they wished to they could have carried out reconstruction works on “Woodview”.
63. Looking at the circumstances of the case overall, I am of the view that the Plaintiffs are entitled to have awarded to them an additional £7,500 by way of aggravated damages in recognition of the additional hurt and insult caused to them by the outrageous conduct of the Defendants.
PUNITIVE DAMAGES
64. The Plaintiffs also seek to have an award of punitive damages made in their favour. That topic was also dealt with in Conway’s case by Finlay C.J. as follows:
“Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the Courts particular disapproval of the Defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the Defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the Plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element”.
65. I do not find in this case the circumstances which would warrant the grant of an award of punitive damages. Even if I had come to the conclusion that such circumstances did exist, such damages would not be payable by reason of the general principle concerning them which is referred to by Finlay C.J. in Conway’s case where he said “as a general principle they should not be awarded if in the opinion of the Court the amount necessarily payable by the wrongdoer in the form of compensatory damages constituted a sufficient public disapproval of and punishment for the particular form of his wrong-doing”.
66. In my opinion the award of damages made in favour of the Plaintiffs in compensatory and aggravated damages constitutes a sufficient public disapproval of the activities which were engaged in by the Defendants on the occasion in question.
CONCLUSION
67. The total award to be made in favour of the Plaintiffs jointly is therefore as follows:
68. Costs of repairs £25,000.00
69. Miscellaneous expenses £800.00
70. Planning appeal fees £500.00
71. Cost of rental accommodation £2,500.00
72. Professional fees £11,000.00
73. Contingency money £5,000.00
74. Diminution in value of Plaintiffs’ home £65,000.00
75. Aggravated damages £7,500.00
Total : £117,300.00
76. Damages payable to Mr Todd severally
for inconvenience, stress and general upset £10,000.00
Total : £10,000.00
77. Damages payable to Mrs Todd severally for
inconvenience, stress and upset £12,000.00
78. Personal injuries to Mrs Todd
To date £15,000.00
In the future £7,500.00
Total : £34,500.00
Towey v Dublin County Council
High Court, Peart J., March 16, 2005; [2005] I.E.H.C. 93
The Parties:
For the purpose of this judgment the plaintiffs who seek relief are Frank Towey Limited (“Towey”) and Sibra Building Company Limited (“Sibra”). For the most part I shall refer to these parties collectively as “the plaintiff”. It may become necessary to distinguish between them, and if so I shall in such instances make that clear by using “Sibra” or “Towey” as appropriate. These proceedings no longer involve the second and third named plaintiffs.
Sibra is the freehold owner of the licensed premises known as “The Foxhunter”, at the centre of this claim (“the premises”), and which are situated on the south side of what used to be called the Palmerstown Road, near Lucan, Co. Dublin, before it became the Palmerstown By-Pass. This location is now on the south carriageway of the N4 Dublin to Galway Dual Carriageway.
There is for all practical purposes a common shareholding between Towey and Sibra.
Towey trades in the premises, and holds the leasehold interest therein from Sibra under an Indenture of Lease dated 13th July 1993 expressed therein to be for a term of ten years from the 1st July 1993 at a rent of £20,000 per annum, reviewable every five years. That Lease has expired and while no new lease has been entered into, Towey remains in occupation under the same terms as the expired Lease.
There has been evidence that Sibra contracted to purchase the premises by Contract for Sale dated 20th June 1984 from the previous owners whom I shall refer to as “Langan”. The sale was closed on the 21st December 1984.
There has also been evidence that Towey has in fact been in occupation of and trading from the premises from that time, and that what was clearly a somewhat informal relationship of landlord and tenant between Sibra and Towey was “formalised” in 1993 by the execution of the Lease referred to.
The defendant is the roads authority for the relevant area.
The historical background to the proceedings:
It appears that prior to the commencement of these proceedings in 1989, in which certain injunctions and damages for breach of contract are sought against the defendant, there had been discussions between Langan and the County Council which culminated in a certain “agreement” regarding what access openings the Council would include in the median of the dual carriageway, so as to permit access to the premises to traffic comings eastwards towards Dublin city by crossing the dual carriageway, and which would also permit patrons to exit the premises by crossing the westbound carriageway so as to make a right turn towards Dublin city. I will return to the nature of those discussions and the “agreement” concluded in due course.
It is contended by the plaintiff that at the time of the negotiation of the purchase of the premises from Langan around 1984, a letter dated 4th August 1983 from P.J.Bannon (of Harrington Bannon, Estate Agents) on behalf of Langan to Dublin County Council, and the letter dated 26th August 1983 in reply thereto and which confirmed that the items 1-6 contained in the letter dated 4th August 1983 “are as agreed with you on site”, were handed over by Langan.
In evidence, Frank Towey junior (a son of Frank Towey senior, who was in negotiations for the purchase), stated that it was made clear by Langan to his father that these letters were very important and that “we should not lose sight of them”. These openings were regarded by Langan and Towey as important to the business run in the premises, as without them eastbound traffic would have no direct access to the premises and business would be diminished accordingly, and it is certainly to be reasonably inferred from the evidence of Frank Towey that since the price agreed for the purchase in 1984 was based on turnover, as is usually the case with the sale of a licensed premises, the price paid for the purchase was influenced by the reassurance they took from this exchange letters which had followed upon negotiations between Langan and The County Council regarding the openings in the median of the dual carriageway, and that had they known that there would be a closure of the median openings, and in particular opening No. 2 opposite the premises, they would have paid less in order to reflect an anticipated and consequential drop in sales.
Following these negotiations it appears that the dual carriageway contained 4 openings in the vicinity of the premises. In due course openings 1, 3 and 4 were closed on road safety grounds, but it was opening No. 2 which was of critical importance to the plaintiff since it was that opening which provided direct access across the dual carriageway for patrons wishing to enter and the premises by means of crossing the dual carriageway. It does not appear that the plaintiff made any move to prevent or persuade the defendant not to close openings 1, 3 and 4, when the Council did so, since it was opening No. 2 which was of major significance to them.
In 1989, it appears that the County Council commenced to close the remaining opening No.2 and this led to the commencement of these proceedings for the purpose of seeking injunctive relief. At that stage certain undertakings were given by the defendant not to close the last remaining opening pending the determination of the proceedings. Much time has elapsed since then. In addition, in the intervening period, the Road Traffic Act, 1994 (“the 1994 Act”) has passed into law, s.38 of which entitles a road authority, such as the defendant in these proceedings, to provide such traffic calming measures as the consider to be in the interests of safety and convenience of road users, subject to compliance with the requirements contained in the section.
Superintendent William Collins gave evidence which would certainly leave no room for doubt that in his opinion the existence of the remaining opening in this median poses extreme danger for traffic and should be closed under the powers provided for in that section.
In these circumstances, the defendant contends that whatever may or may not have been agreed with Langan in 1983 concerning the existence of a permanent opening in the median to facilitate entry to and egress from the premises, they are now statutorily entitled to close it in the interest of safety, and that accordingly injunctive relief should not be granted, and the undertaking given in 1989 ought to be discharged so that work can be commenced to close the opening. The defendant denies that there is any privity of contract between it and the plaintiff, and that the plaintiff is not entitled to damages for any alleged breach of contract, even if one existed with Langan as a result of the negotiations and correspondence in August 1983 (which is of course denied).
The plaintiff now contends that the rights arising from the negotiations in 1983, leading to the two letters to which I have referred amount to an easement for the benefit of the premises. It is further submitted on behalf of the plaintiff that since it is beyond argument that this easement is not the subject of any deed or grant, it is equitable in nature and operates by way of a proprietory estoppel against the defendant.
It is alternatively argued that the contents of the “agreement” amount to a restrictive covenant the benefit of which passes to the current owners without any deed.
It is further submitted that the rights created by the exchange of letters following the 1983 negotiations with Langan constitute a chose in action in respect of which there has been an equitable assignment by the vendor to the plaintiff.
In these circumstances, the plaintiffs claim in the first instance an entitlement to injunctive relief to restrain the closure of the opening, but in view of the plea that the defendant is entitled under the 1994 Act to close the opening, the plaintiff seeks damages in the event that the opening is found to be in the interests of public safety and convenience to close it, since to do so would cause a breach of rights to which the plaintiff are entitled and in respect of which they say they can prove a loss into the future.
The legal issue to be first determined:
The question to be determined prior to embarking on any examination of any claim to injunctive relief, or more likely the claim for damages, is to ascertain the precise nature of any arrangements or agreement entered into by the County Council with the plaintiff’s predecessors in title, Langan, in 1983. Once that is ascertained, the Court will have to determine whether, in the absence of anything expressed, in relation to any such rights as may accrue from those arrangements, the plaintiff has any entitlement in equity to the benefit of them, such as would entitle them to claim damages from the County Council who wish to exercise a statutory entitlement to close the opening.
The terms of the agreement in 1983:
Before turning legal submissions in relation to equitable easements, proprietory estoppel, the equitable assignment of a chose in action, and restrictive covenants, it is necessary to look at the evidence which has been given as to the terms of the agreement made in 1983 by the County Council with Langan. Fortunately, some of the personnel involved at that time are still available to recall, as best they now can, what was the agreement, and the Court also has the benefit of the correspondence which was exchanged after the oral negotiations were completed.
The meeting on site on 26th July 1983:
There is a memo under ref: RF/AK, which is a reference to Mr Ronald Fox of Harrington Bannon, which firm was acting on behalf of Langan in the discussions with the County Council. That file memo states, in relation to the access problems, as follows:
“PJB [Mr Joe Bannon] and RF met Mr Langan on site on the 26th July 1983. Mr Langan explained that he had co-operated with the County Council up until the temporary closure of the existing road. He complained that he had not got a temporary access directly in front of his pub and that consequently his trade was substantially diminished.”
That memo refers to other complaints such as noise, oil, dust and so on but those matters are not strictly referable to the present case.
Meeting on site with County Council – 27th July 1983:
There is also a memo by Mr Fox of a meeting on the following day the 27th July 1983 which states as follows:
“PJB arranged a meeting on site with the various individuals concerned.
Present: PJB – Harrington Bannon
RF – ditto
Jim Gahan, Dublin County Council, Chief Valuers Office.
Dermot Heaney, Engineer on Site
Frank , Engineer [probably Frank Vaughan]
The alignment and positioning of the road has now been marked on site and it is clear that very little if any land will be acquired from Mr Langan.
Mr Gahan explained to him that the Council would do all that was reasonable to facilitate him but that this could not include a temporary access as such access would be dangerous. With regard to permanent access Mr Langan was assured that two openings in the median strip would be available with traffic being able to do a complete U turn. (my emphasis)
With regard to his own property a small wall would be built associated with marginal changes in the existing road level and the question of access to this could be discussed at a later date.
In addition, Mr Gahan agreed that the County Council would put up larger signs advertising the pub in either direction on the road. These signs to be prepared by Mr Langan.
The engineer explained the timing on site which basically envisaged the digging up of the road to the front of the pub in August and proceeding in August and proceeding eastwards. In January of next year it was hoped to restore two-way traffic on this section, closing the eastwards bound carriageway for resurfacing and by this time next year to have both carriageways in operation.
Concerning the ditch it was agreed that the best method to deal with this was to wait until September and October when all the gullies and surface water traps were in operation and see if flooding occurs.
Concerning the small field adjoining Ballyowen Lane it was agreed that the adjacent bank would be graded to ensure that it was not possible to jump over the chain link fence.
On the question of compensation it became clear that Mr Gahan felt that Edwards versus the Minister of Transport applies and that this disruption will not of itself be compensatable. It would appear that the £25,000 sum however, is still acceptable.”
Mr Bannon wrote to Mr Gahan of the County Council by letter dated 4th August 1983. That letter stated as follows:
“Dear Mr Gahan,
I refer to our meeting on site on the 28th ult., with your goodself, Mr Dermot Hanney and Mr Frank Austin.
The following verbal agreements were entered into and I should be grateful for your confirmation of same in writing:
1/ During the construction of the works full access will be maintained to Mr Langan’s property and every effort will be made to minimise the disturbance.
2/ Dublin County Council will erect large display direction signs to be prepared by Mr Langan in order to indicate the positioning of this access.
3/ The temporary surface water outfall which presently discharges into a deepened ditch close to the western boundary of the lands will be observed to check flooding and increased water table levels and remedial action taken if necessary.
4/ The finished level of the new road will not be substantially different from the existing surface level and a small 2 ft. concrete block wall with a pre-cast concrete capping will be erected 3m from the edge of the new kerb.
5/ Two permanent accesses will be provided at either end of the property, their exact location to be agreed between the engineers and Mr Langan at the relevant time.
6/ Openings in the completed median strip will permit a right turn from the east bound carriageway at the entrance to the Hermitage Golf Club and a right turn from the west bound carriageway at the opening just west of the public house.
Thanking you for your co-operation.
Yours sincerely,
__________________
P.J. Bannon”
A letter dated 26th August 1983 was written by the County Council in response to this letter, and in the following terms:
“I acknowledge receipt of your letter of the 4th instant and confirm that the matters referred to as items 1/6 inclusive are as agreed with you on site.”
The next series of relevant correspondence between these parties commenced with a letter dated 31st August 1984 which obviously followed a meeting in the offices of the County Council. This letter is in the following terms:
“Further to previous correspondence and to your Mr Bannon’s recent meeting with Mr Faley (sic) at this office, I now set out hereunder the terms of settlement which I would be prepared to recommend for acceptance in this case.
1. That the three plots outlined are held by the claimant under Registered Freehold title and vacant possession can be given.
2. That the sum of compensation payable in full and final settlement under all heads of claim will be £25,000 (twenty five thousand pounds).
3. That the Council will also pay your clients proper legal costs of transfer and Valuer scale fee of 1.25% of the compensation together with V.A.T. at the appropriate rate.
4. That the Council will carry out all the accommodation works necessitated by the Scheme, as previously discussed and agreed on site with the resident Engineer, Mr Dermot Hanney.
5. That these terms are subject to the necessary approvals and consents being acquired.
I would be obliged if you could submit these terms for your client’s consideration and let me hear from you in due course.
Yours faithfully,
_______________ ”
By letter dated 7th December 1984 Mr Bannon replied, regretting some delay in doing so due to the fact that he needed to obtain the acceptance of the decision from the “Trustees of Mrs Langan’s estate”. He went on:
…I am pleased to confirm that the terms of settlement, as set out in your letter of the 31st August 1984 are acceptable in their entirety to my clients.
Concerning Item No. 4 in your aforementioned letter, I would be grateful if we could set out in more detail the exact nature of the accommodation works to be carried out by the Co. Council, so as to avoid disagreement at some future stage.”
I should just note at this point before setting out the terms of a letter from the County Council dated 28th January 1985, that the exchange of letters dated 31st August 1984 and that of the 7th December 1984 took place at a time after the Contract for Sale of the premises had been executed on the 20th June 1984. The sale itself was completed on the 21st December 1984. During this period the purchasers enjoyed an equitable interest in the property by virtue of the said Contract for Sale.
By letter dated 28th January 1985 (after the completion of the sale of the premises) the County Council wrote to Mr Bannon as follows:
“I wish to acknowledge the receipt of your letters herein of the 7th December and the 24th instant, and I confirm that the proposed terms of settlement have been submitted to my principals. I expect that the formal manager’s Order approving of the settlement will be obtained shortly and the Council’s Law Agent will then be given instructions to complete the legal formalities.
You should submit your fee account in respect of this matter through your client’s solicitor and arrangements will be made to discharge the account due when the transaction is being completed.
The accommodation works to be carried out by the Council are briefly as follows:
a) Provide a concrete post and chain link wire fence on the new boundary to Plot 79. Provide, and fit in position a new farm type gate to this field and construct a suitable access from the Galway Road. Re-seed the ground adjoining the working area as necessary.
b) Provide a two foot high boundary wall to Plot 82. The wall to be built of split block, properly capped and with piers provided as necessary. In addition the tarmacadamed area adjacent to the working area will be renewed as found necessary.
As you are no doubt aware these accommodation works have been completed some time ago.
Yours faithfully,
_______________”
In addition to seeing this correspondence, the Court has heard oral evidence from various witnesses concerning what took place between the different parties and the County Council around that time. It is necessary to set out that evidence to some extent before being in a position to draw conclusions from it, and thereafter to consider the legal submissions in the light of the factual conclusions arrived at.
Mr Joe Bannon:
He stated that he was instructed in 1983 on behalf of Langan to negotiate a package, including compensation for part of the land belonging to the Foxhunter pub. His recollection of details of what occurred in 1983 was understandably dim at this remove in time, but he has refreshed his memory as best he can from a recent perusal of the file relating to these instructions. He stated in evidence that he believes that the memo of the meeting with the County Council in July 1983, and which I have already set out, represents what took place at that meeting.
He stated that the existence of these openings in the median, giving access to the premises by traffic travelling from the westerly direction was a matter of considerable importance at the time to the owners in relation to the volume of the passing trade enjoyed by the premises.
In relation to the sum of £25,000 agreed in respect of compensation, Mr Bannon stated his view that if it had not been for the agreement about the number of openings in the median at that time, the amount of compensation would have to have been a higher sum.
Cross-examination:
George Brady SC, on behalf of the defendant suggested to Mr Bannon that in 1983 when this meeting took place with the Council regarding what was then the Palmerstown By-Pass, the later Lucan By-Pass would have been in contemplation and that he would have known that it would happen in due course. Mr Bannon frankly admitted that he could not recall now whether that would have been within his knowledge at that time. He did however accept that he would have been aware of the Compulsory Acquisition Order made in September1983. Mr Brady suggested that it was in the nature of these road developments that they are simply a phase at any particular time, and that things inevitably in time will move on and change, and that any person, such as the plaintiffs, who were buying property in the area would be aware of the risks attendant on this. Mr Bannon accepted that this was probably the case. But he added also that at that particular time it was quite common to have openings in a median on a dual carriageway. I took that to mean that his view was that even if the plaintiffs could be expected to have realised that the road might well change, that would not mean that must be assumed to have realised that the openings in the median would necessarily have to be closed as part of any further development of the road.
Mr Brady also referred to the fact that what Langan really appears to have been concerned about when the meeting was arranged in July 1983 was access to the premises itself rather than the openings in the median. In this regard Mr Bannon was referred to the first paragraph of the file memo dated 28th July 1983 which states:
“He [Mr Langan] complained that he had not got a temporary access directly in front of his pub and that consequently his trade was substantially diminished.”
In this regard it is relevant to refer also to the first item in the letter dated 4th August 1983 which states:
“During the construction of the works full access will be maintained to Mr Langan’s property and every effort will be made to minimise the disturbance.”
And also the fifth item on that letter:
“Two permanent accesses will be provided at either end of the property, their exact location to be agreed between the engineers and Mr Langan at the relevant time.”
It is apparent that neither of these paragraphs refer to the openings in the median. The reference to the openings in the median come in the sixth paragraph which says:
“Openings in the completed median strip will permit a right turn from the east bound carriageway at the entrance to the Hermitage Golf Club and a right turn from the west bound carriageway at the opening just west of the public house.”
Mr Brady points to the fact that the reference to “permanent” relates to access at either end of the premises referred to in item 5 – not the openings in the median strip referred to in item 6.
In his questioning of Mr Bannon, Mr Brady drew attention to the fact that the land on which openings 1, 2 and 3 on the median are constructed had been acquired from the Hermitage Golf Club across the road, and was never in the ownership of the plaintiff.
Evidence of Mr Frank Towey:
He stated that he and his late father had been approached by Langan in 1984 in relation to buying the premises. Negotiations had taken place and there had been chat about the openings in the median due to the construction of the Palmerstown By-pass. He stated that Langan had produced to them the letters from the County Council to which I have referred already and that “it had been conveyed that these letters were very important and that we should not lose sight of them.”
Mr Towey stated that it was critical to them to have access to customers approaching from the West, otherwise they would lose a huge amount of business. He stated that at the time they signed the Contract for Sale, openings 1, 2 and 3 were in situ in the median.
By 1986 there were four openings in the median as shown on the map produced to the Court. At that time the plaintiff was anxious to build an extension and sought permission. There were discussions with the County Council who considered that with the advent of the Lucan By-pass, openings 3 and 4 were hazardous on the median. He also stated that at that time the plaintiff did not have the two letters of the 4th and 26th August 1983 to produce to the County Council He thinks they had been mislaid at the time. But he also said that at that time the members of the County Council to whom they spoke denied the existence of the letters, and said that they had no knowledge of any such agreements regarding any openings in the median.
Mr Towey thought that it was Mr Bannon who at a later date provided the plaintiff with further copies of the letters.
He stated that without opening No.2 in the median, traffic approaching from the West would have to continue past the Foxhunter, along the carriageway as far as the Liffey Valley exchange or the M50 Roundabout and then come back to these premises. But the difficulty from the plaintiff’s point of view is that while that is possible to achieve, any potential patrons making that journey would pass two other licensed premises and in all probability would not bother to come back to the Foxhunter. Their business would be lost to the plaintiff as a result.
Mr Towey stated that over the years since 1983, openings 3 and 4 were closed, as already stated, and that opening 1 was also closed. In spite of these closures, Mr Towey was happy enough since it is opening 2 which is of importance to the traffic coming from the West accessing the plaintiff’s premises.
He also gave evidence about a wall which was required to be built between these premises and the Texaco Service to the east of the premises. It was a condition of a planning permission that this wall be put in place, because the County Council was keeping opening No.2 and they did not want a situation whereby cars from his carpark would access Opening No.2 by going into the Texaco premises and going across the median at that point. Mr Towey was of the view that they could have closed opening No 2 instead, and suggests presumably that they did not do that because they knew that they had agreed not to in August 1983.
Mr Towey stated in his evidence that the plaintiffs would not have engaged in their expansion plans had they been aware that the Council were entitled to close the opening at No.2. He described the effect of this closure as “hugely devastating”. He was of the view that a significant amount of business would be lost on days such as GAA match days when a large volume of traffic comes from the westerly direction, because they serve food and drink on the premises.
Cross-examination:
When cross-examined Mr Towey accepted that in 1983 he would have been aware of the plans to develop the Lucan By-Pass, but stated that he always knew that opening No.2 would be there so he was not too worried about the road development. He said he was always aware that there was a possibility that openings 1, 3 and 4 might go, but that he could always rely on No.2.
He also accepted that at the time of purchase he would have been aware that opening 4 was going to be closed, and it was put to him that at that point on time he was aware that anything contained in the August 1983 correspondence was unreliable as far as being a guarantee that openings would never disappear. But Mr Towey stated in response that the significance of opening No.4 was for traffic exiting from his premises rather than traffic accessing the premises from the West. In that regard he was aware that a bridge was being constructed which would conveniently take traffic exiting the premises back towards the city, and that there would therefore be no negative impact with its closure, such as will result from the closure opening No.2. He therefore had not gone back to Langan for any abatement in the purchase money being paid for the premises, because opening No.2 was remaining.
He also accepted that in the sale of the premises to the plaintiff, it was a straight transfer of the property and that there was no assignment of any contract or agreement between Langan and the County Council, or the benefit of any such agreement, if any, and that there was no notice given to the County Council of any assignment of any such rights following completion of the purchase.
He also accepted that opening NO.2 was not exclusively for the benefit of persons wishing to access these premises, but that it also provided access to the Texaco Service Station, and also for persons travelling westwards who wish to cross over to the Hermitage Golf Club, and persons coming from the West who wish to cross onto the westbound carriageway.
It was also accepted that there was no agreement under seal in relation to any such agreement.
Mr Towey was of the view that if the opening at No.2 is now closed, the loss of turnover will be in the order of 20%. I shall return in due course to the issue of damages.
Evidence of James Gahan:
Mr Gahan is now retired but in 1983 he was the Deputy Chief Valuer with what was then the Dublin Corporation, and he was present at the meeting arranged for the 28th July 1983 to discuss Langan’s concerns in relation to work on the Palmerstown By-Pass. He said in evidence that Langan’s concern was the works were preventing him operating his business, and he wanted the Council to do everything possible to ameliorate the situation.
Mr Gahan thinks the meeting lasted about one hour and they all discussed the operational works in connection with the construction of the road. He described the concerns expressed by Langan as being of an “interim nature”. He referred top the nature of the items referred to in the letter of the 4th August 1983 in this regard. Item 1 in the letter being what he called the reasonable requirement that access to the pub be maintained during the pendency of the works; and item 5 referring to 2 “permanent” access points to his premises, the location of each to be agreed at a later stage; and item 6 referring to “openings in the median strip”.
Mr John Foley also gave evidence on behalf of the Council. He had been a valuer in the Valuation Office of the Dublin Corporation at the relevant time and was involved in the negotiations with Langan which lead to the settlement reached as appearing in the correspondence already referred to and a letter dated 28th January 1985. He was in fact the author of the letter dated 4th August 1983. Nothing in his evidence advances the sum of knowledge to date.
Mr Dermot Hannay also gave some evidence. He was also at the meeting with Langan in July 1983. He stated that prior to that meeting there were works being carried out in the location of the Foxhunter and as part of those works, the westbound carriageway had been closed completely and the eastbound carriageway had been turned into a two way carriageway while they excavated and resurfaced the road outside the Foxhunter. He said that Mr Langan had parked his car on the westbound carriageway which prevented works being carried out, and that he would not allow the works to continue. This appears to be what precipitated the meeting on site on the 28th July 1983. He stated that Langan’s principal concern was that access to his premises should be maintained while that work was going on. That was the main problem, and following that meeting the matters appearing in the correspondence were agreed. He stated that these works had in fact commenced in June 1982, and that about one week prior to this meeting they had interfered with the business of the Foxhunter. The works in question lasted until July 1984. He also gave evidence of the particular matters agreed in relation to the wall between the Foxhunter and the Texaco garage, as well as certain arrangements agreed in relation to access points into the Foxhunter, including facilitating possible future development at the premises.
Factual conclusions as to the nature of the “agreement” in August 1983, and the intention of the parties:
Before proceeding to consider whether the plaintiffs are in some manner entitled to exercise any rights derived from the 1983 agreement between Langan and the Council in 1983, as evidenced by the correspondence, or whether any easement or restrictive covenant can be deemed to have arisen from the events which have happened, it is necessary to reach a conclusion as to exactly what was agreed between the Council and Langan in July/August 1983.
At this time work was in progress on the main road outside the Foxhunter. Mr Langan complained that there was no temporary access in place to permit traffic coming from the west to access his premises while these works were in progress. He was told that no temporary access (i.e. while the works were in progress) was possible but that in due course permanent access would be via two openings in the median. The letter from Langan’s negotiator, Mr Bannon, does not refer to “permanent” in this context in his letter dated 4th August 1983 which followed this meeting, although his file memo does so.
My view from the evidence is that these roadworks in 1983 caused Langan considerable disruption to his trade at that time. One source of disruption was the loss of access across the carriageway for patrons to his premises, while the works were in progress. The Council informed him that it was unable to facilitate him with a temporary access while the work was ongoing, but agreed that when the works were completed there would be two openings in the finished roadway. A sum of £25,000 was agreed to compensate him for the loss of business and disruption generally while the works were being completed.
If the exchange of correspondence is looked at in this context it is clear that the word “permanent” referred to in the file memo (and it is not replicated in the follow-up letter in connection with these openings) is used not in the sense of “for all time” but rather in the sense of when the works have been completed, or being other than temporary while the work was in progress. It is not in my view reasonable to interpret the use of the word “permanent” in that context, to extending to a guarantee or commitment by the Council that at no time in the future when the roadway might be altered in any way in connection with the Lucan By-Pass, that these openings would be left in place forever. Far more by way of certainty would be needed in the terms of the agreement for such a broad commitment to be inferred.
The plaintiff states that the letters of August 1983 were handed over to them by Langan with the comment that these letters were very important and that they should not lose sight of them. However, there is no evidence at all that the letters were regarded, and neither could they be so construed in my view, other than as some form of letter of comfort, and certainly did not constitute any sort of warranty by Langan that the openings would remain for all time. That this is so is confirmed from the fact, as was stated in evidence, that when the openings were closed one by one and it became clear eventually that opening No. 2 was under threat, there was no question of the plaintiff going back to Langan for any abatement of the purchase price, or seeking to involve Langan in the proceedings which were commenced against the Council when opening No.2 was under threat. I have no doubt that when discussions were taking place prior to the agreement to purchase the premises, Towey was naturally concerned, as would any prospective purchaser, to know what the status of the openings in the median was, and that these letters were handed over by Langan or his solicitor to either Towey or Towey’s solicitor at the time of the transaction and that they served to give him some comfort as to the intention of the Council that there would be a number of openings in the median. But Towey never seems to have approached the Council directly either before the Contract for Sale was signed or in the immediate aftermath of the purchase in order to have the position clarified with any certainty.
It is clear from the evidence that Towey was aware that what was at that time the Palmerstown By-Pass would in due course become the Lucan By-Pass. Searches would have disclosed that situation in any event. He must be taken to be aware that roads evolve over time, especially in an area such as this so close to the capital city. My view is that Towey in all probability purchased the premises in the knowledge that the existence of these openings was something over which some doubt necessarily existed for the future, but he will have derived some comfort from the letters. However, he must have been aware, and would have to have been so advised if such advice had been sought, that the letters could not form any guarantee against closure should Council plans in the future require it.
Legal submissions:
This finding of fact as to what was agreed between Langan and the Council is sufficient to dispose of what is perhaps the strongest line of legal argument put forward by Hugh O’Neill SC on behalf of the plaintiffs. That is the argument that even though there is no direct privity of contract between the Council and these plaintiffs, the rights under that agreement of July/August 1983 amount to an equitable chose in action and are such as can benefit the plaintiffs on the basis of proprietory estoppel. The judgment of Lord Denning in Crabb v. Arun District Council [1976] 1 Ch. 179 is most interesting in this regard and it is at least arguable that it could have assisted the plaintiffs if a wider interpretation could be given to the word “permanent” in the context of these openings in the median. There may have been some difficulty in arguing that the plaintiff had been encouraged to act to their detriment, but that is another matter which I do not have to consider.
If the plaintiffs are entitled to the benefit of what was agreed by Langan with the Council in 1983, it must be no more and no less that what was then agreed. It follows that even if the Court was to find that there has been an equitable assignment of the rights thereunder, those rights extend to nothing other than what was agreed at the time. In these circumstances, it follows that success on this legal argument would not advance the plaintiffs’ position.
Estoppel by conduct?:
For it to be successfully argued that, by its conduct since 1983 in creating and maintaining the opening(s) in the median the Council has thereby encouraged the plaintiffs to act to their detriment such that it would be unconscionable for it to now resile therefrom and seek to enforce its legal entitlements, it would have to be shown that the agreement reached with Langan was of the nature contended for by the plaintiffs. Since I have found as I have above, it seems to follow that the Council’s conduct in seeking to close the opening does not amount to unconscionable behaviour or conduct amounting to fraud, as referred to in cases such as Crabb v. Arun District Council [supra], Dunne v. Molloy [1976-7] ILRM 266, and Annally Hotel Ltd v. Bergin [1967] 104 ILTR 65, to which I have been referred.
An equitable easement?:
The next question is one which is not dependent in the same way as the previous point, on exactly what was agreed in 1983 with the Council. It is whether the creation and existence since creation of the opening in the median had the legal effect, regardless of the intention of any party, of creating some sort of equitable easement over the Council’s property for the benefit of the plaintiffs’ property, and being one for which no legal instrument is necessary for its transfer to the plaintiffs. What would the nature of such an easement be? The very difficulty in trying to formulate the nature of such an easement gives rise to difficulty.
It seems to me that one possibility of what is contended for is a right of passage to the plaintiffs’ premises at opening No.2 for persons travelling in an easterly direction. If it is that, it is the potential patrons who are the beneficiaries and not the owners of the premises. It would be their entitlements which are being infringed by the removal of the opening.
Alternatively, it may be contended that it is a right of access, to be recognised by equity, to the plaintiffs’ property, and which attaches to the plaintiffs’ property over property belonging to the Council. But the present case is not a situation, more usually the subject of cases on the subject, where an easement of necessity is deemed to exist in circumstances where there is no other available access to the dominant tenement. In the present case there is alternative access, even for the eastbound traffic. It may be less convenient but it is not so inconvenient as to be meaningless.
The plaintiffs would have to contend that equity would recognise the right or easement on the basis of extending the concept of necessity from actual physical access, to the right to maintain a previous profit level for the business carried on at the premises, or even a property value, although in the present case the distinction between these two concepts is probably faint. I have been referred to no case in which such an extension of the meaning of “necessity” has been recognised as giving rise to equitable relief, and it seems improbable in the extreme that such a case could possibly exist.
Mr Brady argued also that there could be no question of the easement contended for over the land constituting the median existing since it would be an easement in gross, and that as such, unlike with a profit a prendre, it cannot exist. He points out that this area serves traffic of many kinds, such as customers of the Texaco Service Station, eastbound traffic wishing to make a U-turn back to the city, and that it is not therefore something which serves only the dominant tenement, namely the Foxhunter pub.
Mr Brady has argued that it cannot be an easement amounting to a public right of way as such, since the public already have a right to cross the opening as long as it exists.
However, Mr O’Neill has sought to argue that there is nothing in principle which prevents a private right or easement co-existing with a public right, and that accordingly there is nothing impermissible in a situation such as this where there is a public right over the median in tandem with the plaintiffs’ private right. He has referred the Court to a passage from Bland on The Law of Easements and Profits a Prendre, at para 2-26 thereof, where the learned author states:
“It is possible for private rights of way to co-exist with a public right of way………An occupier of property adjoining a highway has a private right to enter upon a highway distinct from any public right to pass on the highway.”
The cases footnoted as being authority for this proposition, which is uncontroversial are, inter alia, O’Keeffe v, Dromey [1898] 32 ILTR. 47 and Moore v. Great Southern Railway Co. [1861] 10 I.C.L.R. 46. Both of these cases involve a right of access to enter upon the highway over property in circumstances where the plaintiff enjoyed no other access thereto. I do not think that the plaintiffs in the present case can be assisted in their arguments by reference thereto.
A restrictive covenant against the Council’s property?
The plaintiffs argue that the agreement of July/August 1983 with Langan had the legal effect of creating a restrictive covenant over the area of the Council’s property covering the opening in the median – that covenant being presumably that the Council would not use that area or allow it to be used for any purpose other than as an opening in the median, and by implication that they could never close it. Given my finding in relation to the nature of what was agreed between Langan and the Council it could not in my view have given rise to what is contended for by the plaintiffs, even if it could be successfully argued that such a covenant did not have to be contained in a document under seal.
Given these findings it is not necessary for me to proceed with an examination of the evidence given in relation to the question of damages related to what the plaintiff fears will be a drop in the level of business enjoyed by the plaintiffs from the premises, if eastbound traffic is prevented from accessing the premises when the opening is closed.
I must therefore dismiss the plaintiffs’ claims, and discharge the undertaking given by the Council at the time of the application by the plaintiff for interlocutory relief.
Approved: Peart J.
Redfont Ltd v. Custom House Dock Management Ltd,
High Court, March 31, 1998, Shanley J
SHANLEY J:
1. The first named Plaintiff (hereinafter referred to as ‘Redfont’) is a company incorporated within the State with limited liability and having its registered office at 37 Dawson Street, in the City of Dublin. The second named Plaintiff (hereinafter called ‘Wrights’) is a company incorporated within the State and having its registered office at West Pier, Howth in the County of Dublin. Custom House Docks Management Limited is the company responsible for the management of the International Financial Services Centre in Dublin (hereinafter referred to as ‘the IFSC’). The second named Defendant, Hardwicke Property Management Limited, has its registered offices at 14 Wellington Road in the City of Dublin and is a management company retained by the first named Defendant in relation to its property management affairs.
Redfont opened for business in the Autumn of 1994 in the IFSC. It was a fully licensed public house at that time. Thereafter it proceeded to develop a restaurant business and presently 50% of its activities relate to its restaurant business. The company has been extremely successful since it first commenced business and it now proposes to increase its floor space by some 100% at a cost to it of some £1,000,000. When it originally opened in 1994, it was operating its business five days per week but, due to the demand for the services which it provided, it commenced in October 1995 to run its business on a seven day a week basis. From October 1995 until January 1998 the customers of Redfont parked on the public areas within the IFSC. It does not appear that during this period of time there was any complaints from other lessees within the centre or from the Custom House Docks Development Authority (being the owner of certain of the lands situate at the IFSC) of congestion being caused as a result of patrons of Redfont parking on the public areas adjoining its premises. No provision for car parking spaces had been expressly provided for in the lease that had originally been granted by the Custom House Docks Development Authority to the first lessee of the Harbourmaster Pub. However, by a Licence dated the 20 July, 1994 and made by and between the Custom House Docks Development Authority (hereinafter referred to as the Authority) and Redfont, the Authority granted to Redfont permission to use certain parts of the land comprised in the IFSC and outlined in red on a map attached to the Licence, as a temporary car-park for its customers. The terms of the Licence were such that it was clearly envisaged that the temporary car-park would house at least fifty cars of patrons availing of the facilities of the Harbourmaster Pub. The Licence provided that it could be terminated on seven days notice in writing on the part of the licensor and, in fact, the Licence was duly terminated on the 14 December, 1995. The evidence established that the area for which parking was provided, by virtue of the Licence, was an area located in front of what was described as Stack A of the IFSC and was not an area which was readily accessible to the patrons of Redfont and, accordingly, it was not used very often by their patrons.
Wrights carry on business at premises within the IFSC known as “Wrights Fisherman’s Wharf Seafood Bistro”. The business was started some fourteen months ago at the location in the middle of the IFSC and adjoining the Harbourmaster Bar. The business now employs four chefs and five other staff and is presently extremely successful. Like Redfont, Wrights enjoyed the fact that their patrons could park their cars on the public areas within the IFSC up until January 1998.
THE LEASES AND THE SUB-LEASES
By an Indenture of Lease made the 20 July, 1994 between Custom House Docks Development Authority, Custom House Docks Management Limited and Harbourmaster Pub Limited, the Authority demised to Harbourmaster Pub Limited the demised premises (being the lands described in the first schedule to the lease) for a term of two hundred years commencing on the 20 July, 1994 and terminating on the 19 July, 2194. This is the premises which has been sub-leased to Redfont. Part One of the Second Schedule of the lease provided for certain rights to be granted to the lessee. In particular, at Clause 1, it was provided as follows:-
“There are granted to the tenant the following rights (as rights appurtenant to the demised premises and each any every part thereof):-
1. Right to pass and repass over the Public areas. Subject to the same being formerly opened full free right and liberty (in common with the landlord and all other authorised by the landlord from time to time and all other similarly entitled from time to time for the tenant, its under-tenants, servants, agents and visitors) to pass and repass at all times and for all purposes:-
(a) with or without vehicles over all the roads now or hereafter within the perpetuity period forming part of the public areas and
(b) by foot over all the walkways, malls, squares and other pedestrian areas now or hereafter within the perpetuity period forming part of the public areas;
subject to the right of the landlord to alter or vary such rights provided always that at all times the tenant shall have access for all purposes to the demised premises and provided further that nothing in this lease shall prevent the tenant from using any of the public areas which form part of the demised premises.
‘Public areas’ are defined in the lease as:-
“All formerly opened areas from time to time within the development area (excluding the units save any part thereof which is agreed to be a public area) including without prejudice to the generality of the foregoing the public walks, malls, roads, bridges, decks, lifts, stairs, staircases, and other similar features provided always that if the landlord shall cause or permit any alterations in the development area which shall in any way reduce, alter or extend the area or location of the public areas or any part thereof then the definition of public areas shall as and where necessary be modified accordingly”.
Part Two of the Second Schedule provides at Clause 6 as follows:-
Right to make Rules and Regulations.
The right from time to time to make reasonable rules and regulations and to make additional amendments or revisions thereof where the orderly convenient and proper operation, management and maintenance of the development area as a whole or any part thereof and in particular the public areas.
It is clear from a perusal of Part Two of the Second Schedule that the right to make rules and regulations of the kind set out in Clause 6 are expressly excepted and reserved to the landlord and its management company, its servants and agents. The lease to Harbourmaster Pub Limited to which I have referred above, was a lease which was used commonly by the Authority in relation to most of its lessees within the IFSC. Neither of the Plaintiffs took a lease directly from the Authority. Redfont took a sub-lease from Harbourmaster Pub Limited and Wrights from the original lessee of its premises (Unit 3). Both of them entered into sub-leases which were substantially the same as their head leases. The sub-leases each contained the same right of way as was contained in the head lease; the sub-lease also contained the right in the landlord, the superior landlord and others to make rules and regulations for the orderly convenient and proper operation, management and maintenance of the development area as a whole or any part thereof and in particular the public areas. In addition, the sub-lessees specifically covenanted (at Clause 3.11) not without the consent in writing of the landlord to stand or place or permit or suffer to be placed or deposited outside any part of the demised premises or on any part of the development area or the public areas, any automatic machine, display case, board, vehicle (other than while loading or unloading) or article of any description whatsoever or to solicit for customers or to transact business upon the same, or to obstruct the same in any way whatever but at all times to co-operate in keeping all such areas free and unobstructed.
THE RESTRICTIONS OF THE 21 JANUARY, 1998
On the 21 January, 1998 Dominic Long, an employee of Hardwicke Property Management Limited, issued a memorandum which appears to have been circulated to most of the lessees in the IFSC. That memorandum stated as follows:-
“I refer to last Thursday’s meeting of Custom House Docks Management Limited representatives at which I was requested to seek legal advice regarding improved security measures being considered in light of the current political climate.
I enclose for your attention a copy of the subsequent letter to Frys together with their response. In light of Frys comments and in line with the opinion voiced by the majority of attendees at last Thursday’s meeting, it is our intention to implement the existing restrictions on parking within the IFSC 24 hours per day, 7 days per week from this Friday the 23 January. To recap, restrictions on parking will be as follows:-
1. Entry will be granted to all vehicles with access to a valid parking space within the IFSC.
2. Access for deliveries and set down purposes will be allowed. These vehicles will require a permit and a strict 30 minute limit will apply.
3. Any vehicles not complying with these procedures may be clamped and will be subject to a £50 fine prior to release.
Please note that with effect from today we have instructed Securiforce to provide a man for at least 8 hours per day, in order to assist with the policing of these procedures. Please also note that the existing procedure at the main entrance allows for known members of staff and/or cars displaying passes to be ‘waved through’. This regime has applied in the past in an effort to avoid traffic congestion in this area. We have been requested by one representative to amend the existing procedures to ensure that every single car entering the LFSC is stopped and the driver questioned as to their business. However, we have deferred making these changes until the views of all representatives are known. I would very much appreciate if you would revert to David Cullen in writing by Friday morning at the latest with your views on:-
(a) the extension of current parking restrictions, and
(b) changes to existing checkpoint procedures.
Any queries also be addressed verbally to David by phoning either 8365922 or 087-527318.
Regards
Dominic Long”
Both Mr Heagney (of Redfont) and Mr Wright deposed to the fact that the implementation of the memorandum, the contents of which I have just quoted, was far more severe than in fact its contents might have indicated. Mr Heagney, in particular, says that in the days following the circulation of the memorandum, patrons intent on visiting his establishment were not even allowed access to the IFSC. In particular, Mr Heagney says that on the 26 January, 1999 a person who intended to visit his premises was told by a security man that “there is no parking anywhere in the complex”. He himself says that on the 29 January, 1998 and on the 1 February, 1998 he himself was told by a security man that there was no parking within the IFSC; while this latter account of Mr Heagney is hotly disputed by Mr Cullen, Mr Heagney does not resile from what he deposed to.
Mr Dominic Long is a director of Hardwicke. He says that he attended regular management meetings which involved Redfont, Wrights and other tenants within the Centre. He drew attention to the fact that the management company was empowered to introduce rules and regulations under the provisions of the leases with each of the lessees and, in particular, was permitted to introduce the restrictions on parking which came into effect on the 23 January, 1998 by reason of Clause 6 of Part 11 of the second schedule to the lease, which provided for the introduction of rules and regulations where “it was necessary for the orderly convenient and proper operation and management of the public areas of the Irish International Financial Services Centre”. Mr Long indicated that as far back as August 1997 he had had discussions with Mr Heagney in relation to possible use of a multi-storey car parking facility which was due to open. He indicated to Mr Heagney that the owners of the multi-storey car-park (Alanis Limited) were prepared to open the car-park at weekends for the purposes of facilitating the Harbourmaster Bar and, indeed, Wrights Restaurant, provided that mutually agreeable terms could be arrived at. Mr David Cullen who is a property manager employed by Hardwicke, recalls the same meeting in August 1997 which was attended by a Mr McCormack from Alanis Limited, Mr Heagney and Mr Long. He recalls Mr Heagney proposing a valet service for patrons of the Harbourmaster Bar and Mr McCormack of Alanis saying that he personally would be interested in the idea. Mr Cullen recalls Mr Heagney suggesting a charge of some 90p per patron for the use of the car-park at night. It was Mr Cullen’s recollection that Mr Heagney, after the meeting, was to submit proposals concerning the idea of a valet service but he never did. Mr Heagney agrees that indeed the idea of providing a valet parking service was discussed between him and representatives of the multi storey car-park but he said that a valet parking service required a set down area outside the Harbourmaster Pub and David Cullen had indicated to him that he would not give permission for such a set down area. Mr Long’s present position is that the Defendants are willing apparently to make a set down area available to the Plaintiffs to facilitate the valet parking proposal that was first mooted at the August 1997 meeting.
Mr Heagney is adamant that security is not the real reason why the parking restrictions were introduced in January 1998. He says that if security was the real reason, he cannot understand how there is such ready access for cars to other parts of the IFSC and the residential part of the Centre, namely, the Custom House Plaza.
WRIGHT’S COMPLAINT
Mark Wright is a director of the second named Defendant. He specifically recalls Paul Byrne of the first named Defendant promising, prior to their entering into the sub-lease, that there would be no difficulty or problems with parking on the public roadways within the IFSC at night time and that this would be permitted by the Authority. He says that had he not received such an assurance, his company would not have entered into the lease which they entered into. Mr Byrne has no recollection of making any such representation and neither does Mr Brannigan of Jones Lang Wootton who negotiated the sub-lease with the second named Plaintiff. Mr Byrne draws attention to a letter from Messrs William Fry Solicitors to Messrs McCann Fitzgerald (who are acting for Wrights) dated the 30 January, 1996 in the course of which letter William Fry stated:-
“With regard to car parking I reiterate the comments made in my letter of the 24 January. The unit was not marketed with car parking spaces and there are no such spaces available for lease with the unit. The car spaces directly outside the unit may at a future date be marketed for use on a licence basis”.
THE PRESENT POSITION
The Plaintiffs complain that the traffic restrictions imposed at the end of January 1998 have had a disastrous effect on their trade: in Wright’s case it may be necessary to cease trading; in Redfont’s case, custom has significantly diminished since the imposition of the traffic restrictions. Damages, say the Plaintiffs, will not be an adequate remedy. As to the traffic restrictions, there is some controversy as to the current position: there is undoubtedly no parking on Mayor Street permitted: this of course is the road on which both Plaintiffs’ premises are accessed from by their patrons. The Defendants say that they are permitting cars to set down passengers at the premises of each of the Plaintiffs and that they are prepared to arrange a set down point if a valet service is arranged with the owners of the multi-storey car-park, (Alanis Limited). The Defendants, however, will not allow the patrons of the Plaintiffs to gain access to the multi-storey car-park other than by going through Mayor Street, Custom House Quay and hence to the multi-storey car-park at Common Street. From the multi-storey car-park at Common Street it is some 200 yards to each of the premises of the Plaintiffs. There is a gate at the Common Street junction with Mayor Street which presently is closed after normal business hours.
THE SUBMISSIONS
The Plaintiffs say they are entitled to interlocutory relief. They say they have a right of way which includes a right to park. That right of way they say is being interfered with by the Defendants to such an extent that if the Court does not restrain the interference, the damage caused will be irremediable. The Plaintiffs say that each of their sub-leases contains an express right of way so widely drawn as to include a right to park cars on the way, providing no obstruction is caused. Even if the Court did not agree that the right of way is sufficiently widely drawn to permit parking, it is argued that such an easement (of parking) is enjoyed by them pursuant to Section 6 of the Conveyancing Act, 1881. The Plaintiffs go further and say that if the express grant to pass and repass does not include the right to park, such should be implied by the words of the grant. Finally, both Plaintiffs say that the Defendants are estopped from denying the right of their patrons to park outside their leased premises. Wrights in particular, contend that they were assured that parking would not be a problem if they entered the sub-lease and that they would not have done so had they known the true position which was to obtain in January 1998.
The Defendants say they have no privity of contract with the Plaintiffs. They submit that the express grant of right of way does not admit of an interpretation allowing the parking of cars on the way over which the right is granted. They submit that Section 6 of the Conveyancing Act, 1881 has no application to circumstances such as the present where there has not been a previous demise of the property and where there have not been prior lessors or lessees of the premises of the Plaintiffs. The Defendants further submit that the wording of the express grant of the right of way in each of the sub-leases is of such clarity that there can be no room for implying into it any right to park cars. The suggestion that any conduct of the Defendants gives rise to an estoppel is vehemently denied by them. The Defendants’ case is that under the provisions of the lease (and indeed the sub-leases) they are entitled to manage the IFSC and to make all reasonable and necessary rules to that end: the traffic restrictions of January 1998 were to that end, having regard to security and other considerations. In addition the Defendants point to the fact that in the Clause which grants the express right of way, the landlord is given the express right to “alter or vary the right granted”.
THE LEGAL PRINCIPLES
This is an application for interlocutory relief. Whether or not that relief is granted is a matter for the Court’s discretion. That discretion is to be guided by the principles laid down by the Supreme Court in Campus Oil Limited and Others v The Minister for Industry and Energy [1983] IR 88: in summary, before granting interlocutory relief, the Court should satisfy itself that the plaintiff has shown that his case is an arguable one, that damages are an inadequate remedy and that the balance of convenience favours the grant of such relief.
The Plaintiffs say that they are possessed of easements which the Defendants are interfering with. The existence of the easements the Plaintiffs contend for and the nature and extent of any interference therewith is at the heart of this case. As Professor Wylie notes in his work on Irish Land Law, Second Edition, at paragraph 6.054, the usual method of expressly granting an easement is by deed. In the present case, the lessee under the head lease and the sub-lessee under the sub-lease is granted an express right of way. Insofar as it relates to vehicular access, the easement in the sub-lease extends to the tenant and his visitors the right “to pass and repass at all times and for all purposes with or without vehicles over all the roads now or hereafter within the perpetuity period forming part of the public areas . . . subject to the right of the landlord and the superior landlord to alter and vary such right”. Clause 3.11 at page 38 of the sub-lease prohibits the sub-lessee from placing a vehicle on the public areas without the consent in writing of the landlord. Finally, Clause 6 (page 18) of the lease allows the management company to make rules and regulations for the orderly management and development of the public areas as does Clause 6 (at page 27) of the sub-lease.
Peter Bland in his work on the Law of Easements and Profits A Prendre, Dublin, 1997, notes that it was well established that an easement had four essential characteristics: firstly, there had to be a dominant and a servant tenement; secondly, the easement had to accommodate the dominant tenement; thirdly, the owners of the dominant and servient tenements had to be different persons, and, finally, that a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant. It is commoncase that the express grant contained in the sub-leases in the instant cases is the grant of an easement possessed of all of the above characteristics. What is in dispute, however, is how the grant should be construed by the Court. Does the right to pass and repass include a right to stop? If the right of way includes an ancillary right to park, does such negate the consent required by Clause 3.11 of the sub-lease? If the right to pass and repass includes a right to stop, then for what period of time can a vehicle stop in a public area over which the right of way exists? If the owner of the easement is a restaurateur or publican (as in the present cases) can vehicles supplying such premises stop, and if so, for how long ? Can visitors intent on taking food and drink in one or other of the premises stop, and if so, for how long? Is the stopping of a vehicle on a public area outside the dominant tenement for the purposes of either unloading, depositing visitors or having a drink or having a meal within the express grant in the sense that the grant of the easement can be argued to be the grant also of such ancillary rights as are reasonably necessary to its exercise or enjoyment?
In Bulstrode v Lambert [1953] 1 WLR 1064, Mr Justice Upjohn held that a right of way included a right to halt vehicles in a yard as often and for so long as might be necessary for the purposes of unloading and loading. The right to halt, load and unload the vehicle was, he opined, necessary for the enjoyment of the right reserved. He said (at page 1071):-
“It is only an incident of the right of way expressly granted and may be described as ancillary to that easement because without that right he cannot substantially enjoy that which has been reserved to him.”
Again in McIlraith v Grady [1967] 3 All ER 625 at page 627 Denning MR giving a judgment with which the majority of the Court of Appeal agreed said (at page 627):-
“Every grant must be construed in the light of the circumstances. In that case [Bulstrode v Lambed it was held there was a right to bring goods to the auction mart and by implication a right to halt, to load and unload. So here. There was a narrow passageway leading to a small yard. There was necessarily imported in addition to an actual right to pass and re-pass, also a right to stop for a reasonable time for the purposes of loading and unloading . . . suffice it to say that as a matter of construction the right of way includes a right to stop”
Gale on Easements, 15 Edition, expressed a similar view as Mr Justice Upjohn in the Bullstrode case, saying (at page 45):-
“The grant of an easement is also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Where the use of a thing is granted everything is granted by which the grantee may have and enjoy such use”
As to the Courts’ function where there is a dispute as to the scope of an express grant of an easement, the learned authors of Gale on Easements, 15th Edition, at page 292 stated:-
“In the case of an express grant the language of the instrument can be referred to. It is for the Courts to construe that language in the light of the circumstances and in the absence of any clear indication of the intention of the parties the maxim that a grant must be construed most strongly against a grantor must be applied In particular in construing a grant the Court will consider
(i) the locus in quo over which the way is been granted,
(ii) the nature of the terminus ad quem, and
(iii) the purpose for which the way is to be used”.
It therefore appears that this Court is entitled to look at the language of the grant of the right of way and to consider the fact that in the case of each of the Plaintiffs the grant is given to them as lessees of retail units to which the public resort to drink and cat food on the premises. The Court is also entitled, it seems to me, to have regard to the nature of the land over which the right of way is granted and the user of that land at the date of the respective grants to the Plaintiffs. In particular, the Court is entitled to have regard to the physical dimensions of the way for the purposes of determining whether the particular route can at one and the same time sustain, for example, the parking of vehicles on the way and the passage and re-passage of vehicles over the way: in the judgment of Sir George Jessel MR in Cannon v Villars [1878] 8 Ch D 415 at pages 420, 421 the Master of the Rolls said that:-
“Which it is, a question of construction of the grant, and that construction will of course depend on the circumstances surrounding, so to speak, the execution of the instrument. Now, one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed which is obviously the passage not only of foot passengers but of horsemen and carts”.
Section 6(1) of the Conveyancing Act, 1881 provides that a conveyance of land shall be deemed to include all easements “appertaining or reputed to appertain to the land or any part thereof”. Wylie, at paragraph 6.067 of his work on Irish Land Law, (Second Edition) notes that the section only operates where there has been a diversity of ownership or at least of occupation of the dominant and servient tenements prior to the conveyance: it does not apply, he says, to the creation of rights not already in existence. I respectfully agree with his analysis of the effect of the section, which, in all the circumstances, can have no application to the first leases and sub-leases of the Plaintiffs’ premises.
As to the Plaintiffs’ contention that it is legally permissible to imply an easement to give effect to the intention of the Plaintiffs and their lessors and that a right to park should be included or implied in the express grant, there is reasonably clear authority for the proposition that, depending upon the circumstances, a Court may well indeed imply an easement to give effect to the intention of the parties. In Pwllbach Colliery Company v Woodrian[1915] AC 634, Lord Justice Parker said at page 646:-
“The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used”
CONCLUSIONS
As this is an application for an interlocutory injunction, the first issue which the Court has to decide is whether the Plaintiffs have raised a fair issue to be tried. I am satisfied that the Plaintiffs have indeed raised a fair issue to be tried and that issue is whether on a true construction of the express grants of rights of way in each of the sub-leases it can be said that there is an ancillary right (which is being interfered with) to park cars because such a right is reasonably necessary to substantially enjoy the rights of way reserved to the Plaintiffs in the sub-leases. Another serious issue established by the Plaintiffs is whether the Defendants by their actions are also interfering with the Plaintiffs’ right to pass and re-pass over the public areas in the IFSC. While there is no Irish authority directly bearing on the issue, the English cases of Bulstrode v Lambert [1953] 1 WLR 1064, and McIlraith v Grady [1967] 3 All 625 suggest that where certain “ancillary” rights are necessary for the full enjoyment of a right of way, they can be imported into the grant of the right of way. It is also suggested that a Court, engaged upon a construction of the express grant of an easement, such as a right of way, is entitled to look at the circumstances existing at the date of the grant: in particular, the Court may look at the physical dimensions of a right of way with a view to ascertaining the intended purpose for which the way was to be used. In the present case, each of the demised premises are within the IFSC; the business of one of the Plaintiffs is that of a publican and restaurateur and the business of the other Plaintiff is that of a restaurateur. The premises of each of the Plaintiffs are adjoining an internal road of the IFSC known as Mayor Street. Up to the date of the restrictions imposed on the 23 January, 1998 visitors and staff of each premises had used the facility of parking on Mayor Street. In the case of Redfont, the Harbourmaster Bar commenced to trade on a seven day basis in October 1995 (it had traded on a five day a week basis prior to that time). Thenceforth, until the 23 January, 1998 its patrons parked on the public areas (including Mayor Street) within the IFSC without complaint. As to Wrights, its patrons have, apparently, similarly parked their cars on the public areas over which Wrights have a right of way since they commenced trading in or about December 1996. The parking which I have just described does not appear to have given rise to any traffic congestion or obstruction. Mayor Street is a ‘public area’ as defined in each of the sub-leases and the right of way of each of the Plaintiffs is over that area and other roads within the IFSC. At the trial of this action the trial judge will be invited to construe the express grants of a right of way and to consider whether there is an ancillary right to park cars on the lands the subject matter of the rights of way. He will construe those grants in the light of such of the foregoing circumstances as existed at the IFSC at the date of the grants.
I am satisfied that while the lessor, its servants or agents has the right to “alter and vary” rights granted expressly by the leases and sub-leases and to make rules and regulations for the efficient and safe operation of the IFSC, they are not entitled to make rules or alter or vary rights the effect of which would in substance be to extinguish such rights expressly granted to the Plaintiffs under their sub-leases. To prohibit parking along Mayor Street is to extinguish the ancillary right to park which the Plaintiffs argue they are entitled too. To prevent patrons of the Plaintiffs from passing and re-passing along Mayor Street is to extinguish the Plaintiffs’ right of way; to restrict the times at which such parking may occur or at which the right of way may be otherwise used may or may not be permissible on a true construction of the sub-lease: however, for the present I am satisfied that the Plaintiffs have made out an arguable case, that the Defendants by their introduction of parking and traffic restrictions on the 23 January, 1998 have interfered, in an unlawful and impermissible manner, with the Plaintiffs’ right of way and the ancillary rights contended for attaching to the right of way, including the right to park on the way.
Any interference with a person’s use and enjoyment of his land is actionable in nuisance; where there has been any disturbance of an easement, the appropriate cause of action is a claim in nuisance: see Paine & Company v St Neots Gas and Coke Comany [1939] 3 All ER 812. That the persons who are alleged to be interfering with the Plaintiffs’ easements are not in any contractual relationships with the Plaintiffs matters not: the proper Defendants are those whose actions have diminished the Plaintiffs use and enjoyment of their lands by disturbing their easements.
I have little doubt but that damages would not be an adequate remedy in the present case in respect of each Plaintiff. Equally I believe that the balance of convenience clearly favours the grant of injunctive relief. If the Defendants have security concerns as a result of the grant of the injunctions, then they will have to take such steps that will eliminate those concerns. If those steps cost money, then those monies will have to be expended by the Defendants. If at the trial of this action the Defendants persuade the trial judge that the Plaintiffs ought not to have been granted an injunction at the interlocutory stage, then the Defendants may well look to the Plaintiffs’ undertaking as to damages to compensate them for the monies they have had expend between the date of the grant of injunctive relief and the final determination of the action.
Having regard to the conclusions I have reached, I propose to make the following Orders:-
(a) An Interlocutory Injunction restraining the Defendants and each of them, their respective servants and agents from interfering with the right to pass, set down and re-pass over the public areas of the International Financial Services Centre situate at Custom House Dock, Dublin I enjoyed by the Plaintiffs and their respective servants or agents, employees and/or visitors.
(b) An Interlocutory Injunction restraining the Defendants and each of them, their respective servants and agents from interfering with the right to park on the public areas of the International Financial Services Centre, Custom House Dock, Dublin 1 enjoyed by the Plaintiffs and their respective servants or agents, employees and/or visitors.
Honiball and others v McGrath and others
unreported, Supreme Court, April 24, 2002JUDGMENT delivered the 24th day of April, 2002 by FENNELLY J. [Nem Diss.]
1. Clonmannon Retirement Village has had a chequered history. It is to be hoped that this appeal will see the end of a prolonged and bitter saga of litigation. Thankfully, the issues in dispute have been narrowed to two essentially technical legal questions.
2. The Village was established in the 1980’s on about twenty four acres of land surrounding an eighteenth century residence, Clonmannon House in County Wicklow. It was to deliver a comprehensive scheme of residence and care for retired people. Bungalows were leased to residents and care contracts made providing for the care and maintenance of the Village and facilities for the residents. After a promising start, it failed, regrettably, to live up to expectations. In the early 1990’s it ran into financial difficulties. The provision of services ceased. Residents refused to pay charges. From 1993 to 1996, all provision of services ceased and Clonmannon House was closed up. These matters were the subject of a statutory investigation by an officer appointed by the Minister for Enterprise and Employment. The Minister petitioned in October 1995 for the winding up of the companies then responsible for running the scheme. A receiver had already been appointed over the lands in 1994. The first two named respondents (“the McGraths”) purchased the enterprise in 1996. The third-named respondent was their nominee. This was the third set of owners.
3. The subsequent attempt by the respondents to extricate the scheme from its difficulties became the subject of bitter recriminations between the majority of the residents, who supported the respondents, and a minority, represented by the appellants, who insisted on strict adherence to what they claimed to have been the terms of the original scheme. As was inevitable, some of the original protagonists are now deceased and certain of the appellants are the legal representatives of deceased residents.
4. In the years prior to 1993, an upper floor of Clonmannon House had been used to provide nursing home services to some of the residents. The plaintiffs claimed that this was part of the scheme and they had a right to have this continued or at least that they should have access to the entire of Clonmannon House for this and other purposes. When the McGraths gave notice that they intended to reside with their family in the House in 1996, some residents, in particular the first-named appellant objected. As the appellants state in their written submissions, this was the fundamental part of the appellants’ case and it precipitated the present litigation which was heard by Kearns J in the High Court over a period of seven days.
5. The learned trial judge has detailed at some length the steps which the McGraths took, following their purchase in 1996, to ascertain by means of consultations and questionnaires the wishes of the residents. This exercise demonstrated that the overwhelming majority of the residents supported the McGraths’ efforts to formulate an altered and viable basis for the care contract. Twenty five of them (in some cases their executors) swore affidavits in High Court proceedings to demonstrate their support. The learned trial judge expressly found that the respondents had discharged the onus of showing that a bona fide opinion had been formed that it was in the best interests of the residents to make the variations. The McGraths had properly considered the amount of the service charge, doing so on the basis of a calculation with their accountant. In the event a varied contract was put in place. This included the provision of a “country club” in the basement of Clonmannon House consisting of a dining room, bar, reading room, launderette, office, store, toilet and library. The contract also provided for reinstatement of the necessary arrangements for the maintenance of the Village as a whole.
6. All these matters have been thoroughly ventilated, investigated and litigated.
7. It is necessary, nonetheless, to describe the central elements in the original scheme but only insofar as is relevant to the points remaining to be decided.
8. Two legal documents contain the essential elements of the original scheme. Firstly, Rayhill Property Company Limited (“Rayhill”) granted a lease of each bungalow to some forty six lessees. Secondly, Home Affairs Limited (“Home Affairs”) entered into a “care contract” with each of the lessees. However, it was also necessary for Home Affairs to join in each lease, because it was the holder of an intermediate registered leasehold interest in the common areas of land and of certain parts of the structure of Clonmannon House.
9. The respondents can be treated, for the purposes of this appeal, and without detailing the relevant conveyancing transactions, as the successors of these companies. They purchased the lands and house at Clonmannon from the receiver, with the co-operation of the liquidator, in 1996. They accepted by way of compromise of an earlier appeal to this Court that the third-named respondent would take an assignment of the care contracts as successor of Home Affairs.
10. The title to the estate was divided to give effect to the various transactions. Rayhill from 1989 to 1991 (and its predecessor in title, Retirement International (Ireland) Limited from 1985 to 1987) granted the leases of the bungalows. Home Affairs (and in the earlier period its predecessor, Retirement Ireland Limited) entered into the individual care contracts. It is only leases granted in the latter of these periods that are relevant to this appeal. In addition, Retirement International (Ireland) Limited, on 10th September 1984, granted a lease for a term of twenty five years from 1st August 1984 to Retirement Ireland Limited of all the common areas and of certain parts not only of the leased bungalows but also, which is relevant to the issues on the appeal, of Clonmannon House. Those parts were described as follows:
“firstly ALL THAT AND THOSE the Common Areas the sites of the staircase landings passages halls roofs external walls and all other communal parts of the Buildings and secondly ALL THAT AND THOSE the main structural parts of the Buildings including the external walls (but not the interior faces of such external walls as bound the Bungalows nor the glass of the windows of the Bungalow) the roofs and foundations of the buildings and all cisterns tanks sewers drains pipes wires central heating boiler ducts and conduits not solely used for the purpose of one Bungalow together with for [Retirement Ireland Limited] it’s Lessees Sublessees Tenants, Subtenants, Invitees , Licensees and Assigns the right to pass and repass at all times and for all purposes with or without vehicles over the lands coloured yellow on the map hereto …”
11. Home Affairs, therefore, shared, at the relevant time, an interest in the premises of Clonmannon House with Rayhill.
12. All the titles are registered. Thus the lessors’ interest in the bungalow leases was held at the times relevant to these proceedings by the McGraths, subject to leases registered as burdens on their freehold folio, Number 17590 County Wicklow, and in turn registered on leasehold folios. Similarly, the title of Home Affairs was registered on a separate leasehold folio 3265L as well as a burden on the said folio 17590. However, a matter upon which much reliance was placed, the rights claimed by the appellants to be enjoyed over Clonmannon House, were not registered as a burden on the leasehold folio (3265L) of Home Affairs.
THE LEASE
13. It is now appropriate to turn to the terms of the bungalow leases.
14. Recital B.(1) to each lease stated:
“The Lessor is completing the development of the Village as a Retirement Village for private occupation for persons aged fifty years and upwards and……[has] erected or intend[s] erecting 60 bungalows in the Village and have restored Clonmannon House which is intended to be used as a part of the Retirement Village for the purposes hereinafter and in the care contract specified …”
15. Each lease referred to in these proceedings was granted for a term of forty five years or the life of the lessee whichever should be shorter and in consideration of the payment of a sum of £42,000 together with a small annual rent payable to Rayhill and also in consideration of the lessee entering into the care contract with Home Affairs, which also joined for the purpose of certain “rights and easements…” in consideration of an additional rent of £1 per annum payable to it, Home Affairs granted and demised to each lessee the rights and easements specified in the Second Part of the First Schedule. These are as follows:
“(a) Full right of way, at all times by day and by night, either on foot or with mechanically propelled vehicles of all kinds, for all purposes connected with the use and enjoyment of the bungalow as a retirement bungalow forming part of a retirement village, in common with all other persons entitled to a like right, to go, pass and repass, over and along the roadway and those parts of the Common Areas as are laid out as driveways or pathways to and from the bungalow, to and from the public highway, but limited to the use of the bungalow as a private residence.
(b) The right to park a motor car or motor cycle or bicycle, used for private purposes only in such car parking spaces as may be allocated to the bungalow hereby demised by the Care Company from time to time.
(c) The free passage and running of water, soil, gas, air, telephone, television and telecommunications of all kinds, oil and heating fuels and other services from and to the bungalow hereby demised through all drains, sewers, pipes, conduits, cables and water courses now or at anytime within the period of 21 years from the date hereof to be in, under, or passing through the Common Areas, or any part thereof.
(d) The free passage and running of water from the roof of the bungalow through the gutters and down pipes on the outside of the bungalow of any adjoining bungalow to the drains and sewers forming part of the Common Areas.
(e) The right, in common with the Lessor and the Care Company, their and each of their servants, agents, invitees and licensees, and the owners and occupiers of the other bungalows in the Village to use as a pleasure garden those portions of the Common Areas as are laid out as pleasure gardens.
(f) The right of lateral support for the bungalow hereby demised from any adjoining bungalow.”
16. Furthermore, Home Affairs entered into the covenants with each lessee which are set out in the Fourth Schedule:
“1. To keep those parts of the Common Areas as are laid out as roadways and pathways in good order and condition, and properly tarmacadamed and whensoever necessary to retarmacadam same.
2. To keep the main structural parts of Clonmannon House, including the exterior walls and the roof thereof in good order, repair and condition.
3. Once in every third year, to paint all outside wood and stucco cement and other like exterior parts of Clonmannon House with two coats of good oil and white lead paint in a proper and workmanlike manner in the same colour as that in which the said work is painted, or in some other colour to be first approved of in writing by the Lessor.
4. To repair and keep the hallways, staircases and landings forming portion of Clonmannon House in good order repair and condition, both substantial and decorative.
5. To keep the fixtures and fittings and machinery in Clonmannon House, and any fixtures and fittings common to two or more bungalows in the Village in good order, repair and condition, both substantial and decorative and to replace the same when so ever necessary.
6. To provide bins for the disposal of domestic rubbish and to make suitable arrangements for the disposal of such domestic rubbish.
7. To keep those parts of the Common Area as are laid out as pleasure gardens and gardens neat and tidy and properly mown and tended.
8. To make regulations from time to time for the user of the Common Areas, the car parking spaces and all fixtures, fittings, machinery and equipment in the buildings.”
17. In addition, each lease contains a number of references to the Care contract. Recital B. (1) cited above declares the intention that the bungalows are to be used as part of the Retirement Village in a manner explicitly linked with the care contract. Each lessee is not only bound to enter into the care contract, but continuance of the lease is made conditional upon his continuing to observe its terms. Home Affairs, on the other hand, merely covenants to perform and observe the covenants on its part “contained in the lease.” Specifically, Home Affairs enters a covenant for quiet enjoyment in terms that the lessee “may peaceably hold and enjoy the easements …demised to him by [Home Affairs] without any lawful interruption or disturbance from or by…” [Home Affairs] or anyone on its behalf.
THE CARE CONTRACT
18. The care contract was, of course, a fundamental part of the original scheme. It was designed to enable elderly people to enjoy the independence of living in their own homes, the comfort of having some daily needs catered for, the society of others and the security of certain minimum health care. Naturally, the care contract provided for routine care and maintenance of the estate. The first schedule to the care contract set out a list of the “care facilities” which Home Affairs then undertook contractually to provide. The cost of these facilities in about 1990 was about £5,500 per annum. Some residents became unwilling to pay so much. That issue is part of the history of the deterioration of the Village and its not necessary now to review it. In the High Court, the appellants claimed that there was a right under the care contract to have a nursing home facility. This was linked with the question of a right of access to Clonmannon House. The only relevant provisions of the care contract are the following items from the First Schedule:
“11. The provision of a qualified nurse on call for minor medical complaints.
12. The provision/maintenance of an infirmary for the treatment of minor medical complaints.”
19. Kearns J rejected the claim that there was a right to have a nursing home facility as completely unfounded. This is no longer a live issue. What is of most relevance is the facility contained in the care contract to vary the terms of the care provided as contained in two clauses:
“(vii) If the Care Company shall be of the opinion that in the interests of the Village as a whole care facilities not hereby agreed to be provided by the Care Company should in future be provided then the Care Company shall give notice in writing to all the Lessees in the Village of such intention and unless not less that 75% of the Lessees in the Village object in writing to the Care Company addressed to its registered office within fourteen days of the date of posting by the Care Company of its notice of intention to provide such additional care facilities then the First Schedule hereto shall be deemed to have been amended to include the provisions of such new care facilities as and from the date when the Care Company shall in its discretion commence such additional care facilities.
(viii) If the Care Company shall of the opinion that in the interests of the Village as a whole it is desirable that care facilities hitherto provided or herein agreed to be provided by the Care Company should no longer be provided then the Care Company shall give notice in writing to all the Lessees in the Village of such intention and unless not less than 75% of the Lessees in the Village object in writing to the Care Company addressed to its registered office within fourteen days of the date of posting by the Care Company of its notice of intention to withdraw such care facilities then the First Schedule hereto shall be deemed to have been amended to delete the provision of such hitherto provided care facilities as and from the date when the Care Company shall in its discretion cease to provide such care facilities.”
20. The first of these provisions allowed for the provision of new or additional facilities, the second for the elimination of services hitherto provided. Apparently, it would suffice if twenty five per cent of the residents supported such a proposed change. In each case, however, Home Affairs had to be “of the opinion that [the change was] in the interests of the village as a whole.” It was held by Kearns J and is not now disputed that these clauses permitted variation of the care contract. The validity of the opinion formed by the McGraths, in order to effect the variations, nonetheless remains at issue.
THE BROCHURES
21. As already indicated, the appellants have at all times maintained that they are entitled to insist on the level of services to be provided on the lines of the original care contract. In particular, they maintained that these had to include a nursing home facility in Clonmannon House. For this reason, therefore, they have claimed and continue to claim a general right of access to Clonmannon House. Consequently, the McGraths did not have the right to live in the house. Furthermore, they contended that such residence was in contravention of planning legislation and, in particular, the terms of a planning permission which had been granted so that nursing home facilities could be provided. In support of their claim that the respondents were bound to provide a retirement complex on the lines for which they contended, the appellants placed reliance on some sales brochures produced at the time of the marketing of the Village complex. Kearns J indulged in a little hyperbole when he described one of these brochures as promising “a version of heaven on earth to purchasers.” They demonstrated “an impressive range of facilities ….. under a picture of smiling staff outside Clonmannon House.” More directly to the point, the following paragraphs seemed, in the view of the learned trial judge, clearly to imply that the residents would have access to and use of the facilities of Clonmannon House:
“Built in 1780, the house – or Clubhouse, as it is known to the residents – is one of the finest examples of its period, no expense having been spared on its upkeep over the years.
The house is the centre of all village activity. Incorporating all the traditional features of gracious living, it is an extension of your own home, a place where you can relax, entertain friends, or participate in a wide variety of social and recreational pursuits.
The house has a small infirmary, where nursing staff are on call at all times, and there is also inter-denominational oratory for religious services.
The Library, overlooking the lovely Wicklow mountains, is ideal for moments of quiet contemplation in front of a winter log fire. The large and beautifully furnished Drawing Room is a place to enjoy coffee or an after-lunch liqueur. Another feature of the Clubhouse is the Billiards Room, always available to residents and their guests. Overnight accommodation is available for the use of visitors.
Everything at Clonmannon Village is designed for your convenience, contentment and peace of mind.”
22. It is important to note that the McGraths at no time saw this brochure before the purchase.
THE HIGH COURT PROCEEDINGS
23. The essence of the case made by the appellants in the High Court was:
24. A) the McGraths did not have the right to reside in Clonmannon House, because, inter alia, the planning permission precluded it;
25. B) the respondents were bound to provide a nursing home;
26. C) the appellants had a right to enjoy general access to Clonmannon House;
27. D) the respondents had not validly varied the care contract.
28. The learned trial judge rejected all these claims. As already stated, he found the contention that there was a right to a nursing home to be completely without foundation in fact. There was nothing in the planning permission which prevented the McGrath residing in Clonmannon House. He found that there was no defect in the variation of the care contract effected by the respondents. On the question of the right of access to Clonmannon House, he accepted the evidence of Mrs McGrath that she had not seen the brochure before purchasing the property and accepted the respondents submission that liability for any such representation as might be contained in such a brochure would not affect a purchaser for value without notice. In any event, nothing in the brochures prevented the respondent from availing of the machinery provided in the care contract for the variation of its terms. He also rejected the appellants’ contention that the rights claimed affected the land without registration by virtue of the provisions of section 72 (1)(j) of the Registration of Title Act, 1964, as being included in the expression:
“The rights of every person in actual occupation of the land or in receipt of the rents or profits thereof….”
29. The learned trial judge held that there was, in any event, no question of anybody being in possession at the time of the purchase. Clonmannon House had been closed for three years when the McGraths became interested. Nor were the rights in the care contract rights in land. They were mere contractual rights which could be varied.
THE APPEAL
30. The issues have been further narrowed down on this appeal. No further reliance is placed on the claimed absence of planning permission for the residence by the McGraths in Clonmannon House. The appellants make essentially two arguments.
31. It is submitted that the right of access to Clonmannon House is granted by necessary implication having regard to the terms of the lease. Clonmannon House was the central core of the entire scheme. While the brochure was not relied upon as varying the contract or adding to the lease, the lease and the care contract were two documents which together showed the intention of the parties. The care contract should be read as if it were appended to the lease. The recitals to the lease followed closely the terms of the brochure. There are numerous references to the care contract in the lease. It was not possible to make sense of the lease, and in particular the covenants by Home Affairs as set out in the Fourth Schedule (as quoted above) to maintain and repair Clonmannon House if the lessee did not have access to it. The right of access could also be considered as a license coupled with an interest. The license is contained in clause 15 of the First Schedule to the care contract:
“The provision/maintenance of the Club House and in particular the bar, billiard room, laundry room, hair salon/barber/beauty salon, grocery/newsagent, cinema, lounge, dining room, pharmacy and medical centre.”
32. The interest coupled with this is to be found in the lease.
33. The appellants’ continued challenge to the variation of the care contract is now based essentially on the narrow contention that the McGraths could not validly have formed a bona fide opinion, as required by the care contract, that the variation was in the interests of the Village as a whole, because they were affected in this by their own wish to reside in Clonmannon House.
34. I will refer only briefly to the submissions on these two issues. As to the contents of the brochure, they rely on the proposition that extrinsic evidence cannot be used to contradict, add to or alter the terms of a deed.. Insofar as the brochure is replicated in the terms of the care contract, the latter was expressly made subject to the possibility of variation. Representations made by Rayhill cannot affect the respondents as purchasers for value without notice. Furthermore, neither the care contracts nor the brochures nor any rights claimed by virtue of them was registered as a burden on either the freehold folio of the McGraths or on the leasehold folio of Home Affairs. The separation of the lease and the care contract was a clear and deliberate part of the scheme. The lease did not confer any rights of access to Clonmannon House on the lessees of the bungalows.
35. With regard to the variation, the respondents point to the evidence of the respondents, and in particular of Mrs Jane McGrath which was accepted by the learned trial judge. The judge had asked that she give evidence first of the circumstances of the variation. She had said that she would have had no problem with the reviving of the old care contracts. It was clear, however, that there were serious cost implications. In fact, when consulted, a very large majority of the residents (in many cases, it was their legal personal representatives) supported a variation to reduce the level of services and thus their cost.
CONCLUSION
36. I will deal first with the issue of the right of access. I have set out all the relevant terms of the lease above.
37. The scheme for the Retirement Village was effected by two distinct documents, each with its separate purpose. The lease conferred a leasehold interest on each resident in respect of his or her own bungalow. It was not, of course, restricted to the bungalow. The lease was part of the scheme for the Retirement Village. Consequently, the lessor entered into a number of covenants relevant to the upkeep of the estate generally. Since Home Affairs was the registered owner (by means of the intermediate lease) of the common areas of the estate, it joined for the purpose of granting a number of easements and similar rights over some common areas and imposing covenants on Home Affairs. These are all set out in the Second Part of the First Schedule and in the Fourth Schedule, which I have quoted above. Nowhere does the document purport to grant any right of access to Clonmannon House, nor do the appellants claim that it does so expressly.
38. This leads to the first point, the reliance placed by the appellants on the contents of the brochure. The respondents are clearly correct in their submission that the terms of the brochure cannot be the source of any such rights. It is trite law that extrinsic evidence cannot be relied upon to contradict, add to or vary the terms of a deed. (Norton on Deeds, 2nd ed. p 135). The lease sets out a comprehensive list of the rights and interests it grants and the obligations it imposes. It does not purport to incorporate the terms of the brochure. These are in the nature of advertising promotion. They do not confer any rights unless they are incorporated in the lease. It is not necessary, therefore, to apply the additional rule, though it would also clearly apply, namely that a representation such as that contained in the brochure could not bind a purchaser for value without notice of the property.
39. I also reject the submission that the lease conferred on each lessee an implied right of access to Clonmannon House. Such an implication would have to follow necessarily and obviously from the terms of the deed. It is said that the covenants entered into by Home Affairs make no sense if there is no right of access. In one sense, that is so. A party does not normally undertake an obligation to another person to repair a property if that other has no interest in having that repair carried out. However, the implication of the grant of a property right would require more. It would have to be demonstrated that the term effecting such a grant would as a matter of compelling necessity have to be implied to give what is usually called business efficacy to the terms of what is expressly agreed. If, for example, the deed, as distinct from the care contract had contained the obligation to provide services at Clonmannon House, it would have been impossible for the beneficiary to enjoy them without a corresponding right to enter the house. Home Affairs can perfectly well perform its repair obligations at Clonmannon House without conferring any right of access on the bungalow lessees. Such a right would have to be considered by reference to the care contract. To the extent that it provides for services to be rendered at Clonmannon House, the law will imply a right of access if that is clearly necessary in order to receive the services. It does not follow, however, that a proprietary right has to be granted. For essentially similar reasons, I reject the contention that there is here involved a license coupled with an interest. In truth the appellants’ argument begs the question. Sometimes a right in land cannot be effectively enjoyed unless accompanied by the grant of a license to enter. (see Wylie, Irish Land Law 2nd ed. par 20.04.) The appellants cannot point to any such antecedent interest in land. Rather their case is the converse, namely that the interest in land is required if they are to enjoy the benefit they claim to have been conferred by the care contract.
40. For these reasons, I would reject the appellants’ contention that they have a proprietary interest in Clonmannon House and it is unnecessary to consider the points concerning the Registration of Title Acts.
41. I would also reject the argument against the validity of the variation of the care contract. The appellants make a point which is more usually encountered in judicial review proceedings, where a decision of a public-law character is being challenged. The care contract was a private contract made between the parties to a commercial transaction. The company or persons responsible for the running of the Retirement Village will of necessity have an interest in the matter. Furthermore, the learned trial judge has made findings of fact, more than sufficiently supported by the evidence. The McGraths engaged in a careful and well supported exercise to ascertain the genuine wishes of the residents. The learned trial judge has found that they discharged the burden of proof of showing that the variation was in the interests of the Village as a whole. Essentially, the appellants’ point is a technical one. They have to accept that the contract can be varied; they cannot dispute the findings of fact made by the learned trial judge. They say that the McGraths had an interest in the outcome and could not form a fair and bona fide opinion, because they could not behave objectively. They were the persons bound under the contract to form any such opinion. The finding of the High Court means that they formed the opinion bona fide. To my mind that disposes of this ground of appeal.
42. Accordingly, I would dismiss the appeal and affirm the order of the High Court.
Conneran v Corbett
unreported, High Court, Laffoy J., December 15, 2004The plaintiffs’ claim
The plaintiffs hold three units, two retail units and a storage unit, in Corbettcourt Shopping Mall in Galway as lessees from the first defendant. In broad terms, they claim that rights in the nature of easements to bring in deliveries of stock and material for their retail units through a car park and into a loading area which formerly existed have been wrongfully destroyed by development of the car park and the loading area. At the time the plaintiffs’ leases were created the first defendant was the owner of the car park and loading area. Subsequently, the first defendant sold the area which has been developed to the second defendant which carried out the development.
It is agreed between the parties that the court should determine the issue of liability first and leave over the question of quantification of any damages to which the plaintiffs are entitled.
Geography
One of the most difficult aspects of this case has been understanding the geography of the plaintiffs’ units and their environs.
Corbettcourt Shopping Mall fronts onto Williamsgate Street in Galway. During the last century the Corbett family carried on a retail business in the premises at Williamsgate Street. On 16th August, 1970 these premises were burned to the ground. The first defendant applied for planning permission to reconstruct the retail premises. Galway Corporation granted permission on 19th September, 1972 (Register Reference No. 65/72) subject to three conditions. Condition 3 provided as follows:
“The car parking facility and the goods loading and unloading bays to be provided in the Castle Barracks Yard shall have capacities at least equal to those of the respective former similar facilities in the same area and they shall be operative and available for use simultaneously with the opening for use of the proposed development.”
The car park referred to in condition 3 was not directly behind the retail premises. It was to the rear of premises fronting on to Williamsgate Street to the west of the premises of the first defendant. In the past it could be accessed via Castle Street and Barrack Lane from William Street to the north or, alternatively, from Whitehall on the south.
In the mid to late 1980s a large shopping complex was developed to the south of the premises of the first defendant with frontage on to Eyre Square and Merchants Road. This shopping centre came to be known as the Eyre Square Shopping Centre.
Around the same time, the first defendant decided to create a shopping mall in its premises at Williamsgate Street by sub-dividing the premises into retail units. Since its reconstruction following the fire the first defendant had been using these premises as a department store. In April, 1986 the first defendant, through its architectural advisor, sought confirmation from the planning authority, Galway Corporation, that its proposal would be an exempt development. By letter dated 23rd April, 1986 it was confirmed by Galway Corporation that the proposed sub-division into small retail shop units of the retail shopping area the subject of the planning permission dated 19th September, 1972 would constitute an exempt development. The letter seeking confirmation had enclosed a layout plan showing the building in relation to the car parking area and had indicated that there were approximately 100 car parking spaces in the car parking area at that juncture.
Part of the Eyre Square Shopping Centre was contiguous with the rear of the first defendant’s shopping mall. In 1991, as part of an arrangement with the owners of the Eyre Square Shopping Centre, the first defendant acquired title to the premises which became Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall and also a right of way over the common areas within the Eyre Square Shopping Centre.
The position on the ground in 1991, when the plaintiffs first took a lease in Corbettcourt Shopping Mall, was as follows:
(a) Unit No. 11, which formerly had been part of Eyre Square Shopping Centre, was on the ground floor level (level 2) of Corbettcourt Shopping Mall.
(b) Unit No. 12, which had formerly been part of Eyre Square Shopping Centre, was located at lower ground floor or basement level (level 1) in Corbettcourt Shopping Mall. Unit No. 12 was directly under and was a mirror image of Unit No. 11.
(c) To the west of the building which contained Unit No. 11 and Unit No. 12 there was a multi-storey concrete building, which for the sake of clarity I will refer to as the concrete building, which had been built in 1974 as the last phase of the reconstruction following the fire. The basement or lower ground floor area of that building was incorporated in Corbettcourt Shopping Mall at level 1. There was also incorporated in Corbettcourt Shopping Mall at level 2 an internal access or passage which connected Corbettcourt Shopping Centre with double steel doors which opened to the loading area located on the northernmost part of the car park. I will refer to these doors as the car park delivery doors. Level 1 was a few feet higher than the exterior ground level on the car park side, so that the car park delivery doors were above exterior ground level to the same extent. However, on the external wall of the concrete building just to the north of the car park delivery doors there were two hatch doors, which I will refer to as the hatch doors, which were at ground level on the car park side and opened into level 1 of the concrete building below the ceiling at that level.
(d) The car park, other than the loading area, was laid out in car park spaces. However, there were existing buildings within the area of the car park, one of them being Corbett House, a modern building which contained four units which had shop fronts both to Barrack Lane and also to the car park.
(e) There was also access from the car park into Corbettcourt Shopping Mall via a ramp which led to double doors, which I will refer to as the ramp doors.
By the mid 1990s, a number of changes had taken place on the ground. A barrier was erected across the entrance to the loading area. There were two notices affixed to the barrier, one which indicated that it was a loading area and strictly prohibited parking day or night. The other indicated that any car obstructing access to the loading bay would be wheel-clamped. Within the concrete building at level 1 a storage unit, Unit No. F, had been created and leased to the plaintiffs. Subsequent to the creation of the lease a chute had been constructed inside the hatch doors so that goods could be delivered to level 1 via the hatch doors and down the chute. Previously, when the concrete building was used for storage by the first defendant, there had been an opening at each floor level, which created what might be called a sideless shaft through which a cage and pulley block mechanism transported goods to each level of the building. However, this was in disuse by 1991 and the opening in the floor at ground floor level had been fenced for safety reasons. The chute was installed by the first defendant at the behest of the plaintiffs. On the evidence, it is clear that the chute presented a more convenient and effective delivery point for Unit No. F than the car park delivery doors. However, this is not of particular significance in the resolution of the issues which arise in these proceedings. The important point is that when the plaintiffs acquired the leases of Unit No. 12 and Unit No. F an opening into the concrete building directly off the loading area was available to them.
Throughout the 1990s the car parking areas of the car park were the subject of successive periodic licences to an individual who operated the car park.
By an agreement dated 19th April, 1996 the first defendant agreed to sell the car parking area and adjoining property to the second defendant. The sale included Corbett House. Counsel for the plaintiffs referred to two provisions of the special conditions in the agreement. Condition 5.1 provided that the sale was subject to the vehicular and pedestrian rights of way to be reserved in favour of the vendor, its successors, assignees, lessees, licensees and agents as set out on a map annexed to the contract. The map in question depicted a vehicular access from Barrack Lane going around Corbett House to the boundary with the property being retained by the first defendant. Condition 7 provided that the rights of way, both vehicular and pedestrian, presumably meaning the rights of way to which the sale was subject, might by agreement be surrendered and replaced by similar rights as outlined on another map if and when Corbett House had been demolished and a new substituted right of way was completed to the satisfaction of the first defendant. The line of the substitute vehicular access was shown on another map. Corbett House has been demolished. The evidence of the Chief Executive Officer of the first defendant, Joseph Corbett, was that arising out of the planning permission which the second defendant obtained in 1998, which is referred to later, the second defendant re-negotiated the access rights for Corbettcourt Shopping Mall. Therefore, the agreement of 19th April, 1996 on its own obviously does not tell the whole story. Apart from the re-negotiation, the map on the agreement suggests that the loading area was being retained by the first defendant, which appears to be at variance with what actually happened. In any event, I am of the view that, while conditions s. 5.1 and 7 of the agreement are consistent with the stance adopted by the defendants that the first defendant was free to dispose of the property sold to the second defendant untrammelled by any existing rights of the plaintiffs and other lessees in Corbettcourt Shopping Mall, they do not assist in the resolution of the issues which arise in this case.
The second defendant applied for planning permission to develop the property it purchased from the first defendant. Planning permission was granted by An Bord Pleanála on appeal on 1st September, 1998. The plaintiffs who had objected to the application and who were appellants on the appeal, on the ground, inter alia, that the development would interfere with their access to their units in Corbettcourt Shopping Mall for delivering goods, withdrew their appeal on payment of a sum of money, but without prejudice to their contention that their property rights were being interfered with. As regards the areas in dispute in these proceedings, the 1998 planning permission clearly superseded the 1972 permission. In any event, Unit No. 11 and Unit No. 12 were not developed under the 1972 planning permission or as an exempted development.
Edward Square Shopping Centre, which was constructed pursuant to the 1998 planning permission, now stands on the land purchased by the second defendant from the first defendant. As a consequence, there is no access from Whitehall to Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall or to the concrete building. The car park delivery doors have been blocked up, as have the hatch doors, leaving the chute defunct. The ramp is gone, the ground having been raised, and there is a porch-type entrance to Corbettcourt Shopping Mall at the location of the ramp doors, which I will refer to as the porch entrance. Deliveries to Corbettcourt Shopping Mall must now come through –
(i) the main entrance at Williamsgate Street,
(ii) Ballalley Lane,
(iii) the Eyre Square Shopping Centre loading bay, or
(iv) Castle Street and Barrack Lane and along a passage between 3.9m and 4m wide within the new development, which Mr. Corbett testified is in private ownership, past a coffee shop which is allowed to have tables, chairs and planters on the passage to the porch entrance.
Routes (i), (ii) and (iii) were in existence before the development of the Edward Square Shopping Centre. Route (iv) is a new route created during the development.
William Street and Shop Street were pedestrianised in 1998, with the effect that Castle Street and Barrack Lane are accessible by vehicles only before 11.30 am. The defendants placed some reliance on this. In my view, it is a neutral factor in the resolution of the issues which arise in this case.
The plaintiffs’ leases
The three leases in issue in these proceedings were made between the first defendant, as lessor, and the plaintiffs, as lessee. The earliest was dated 21st October, 1991 and two were dated 30th September, 1992. The premises demised were described as follows therein:
(1) In the case of the lease of 21st October, 1991, Unit No. 11, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. That map depicted only level 2. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, Unit No. 11 outlined in red and the internal common areas at that level coloured blue. The area coloured blue extended to the car park delivery doors.
(2) In the case of the first lease dated 30th September, 1992, Unit No. 12 on level 1, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. In fact, there were two maps on that lease. One depicted level 1. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, unit No. 12 outlined in red and internal common areas within Corbettcourt Shopping Mall at that level coloured blue. The second map depicted level 2, the entirety of Corbettcourt Shopping Mall at that level (including the entirety of the concrete building at that level) outlined in green and the internal access or passage leading from the car park delivery doors to the internal common areas coloured blue. When this map is compared with the map on the lease of 21st October, 1991, it becomes obvious that it does not show the layout at level 2 within the concrete building as it was in 1992. The reason for this disparity is obvious. The map on the lease of 21st October, 1991 is a later revision which, on the evidence, reflects the position on the ground. It is reasonable to infer that it was the later revision which should have been annexed to the lease of Unit No. 12.
(3) In the case of the second lease dated 30th September, 1992, Unit No. F at level 1, as more particularly delineated and outlined in red on the map endorsed thereon, was demised. There was one map on this lease which depicted the entirety of Corbettcourt Shopping Mall at level 1 outlined in green, unit F outlined in red and the internal common areas at that level coloured blue. It also showed an access or passage connecting the internal common areas to unit F coloured blue. The hatch doors were not shown and the area inside the hatch doors was not depicted as a common area.
In the case of each lease the relevant premises were demised “together with a Right of Way for the Lessee, its customers, licensees and invitees” over the “Common Parts” as defined, with an express proviso that the lessee was subject to the thereinafter mentioned conditions.
Each of the three leases created a term of 35 years and reserved a market rent and was in the standard form used for lettings in Corbettcourt Shopping Mall. The elements of the lease which were the subject of debate in these proceedings are as follows:
• The definition of the expression “the Lessor” as including, where the context so admits, “the reversioner for the time being immediately expectant upon the term hereby created”.
• The definition of “Corbettcourt Shopping Mall” which is defined as follows:
“… part of the premises situate and now known as Nos. 8 and 9, Williamsgate Street in the Parish of Saint Nicholas and in the City of Galway and more particularly the basement, ground floor and first floor and second floor thereof together with a portion of the Goods Service Building at rear as delineated on the Maps annexed hereto and thereon outlined with a this green line.”
On the evidence I am satisfied that the Goods Service Building was and is the part of the concrete building at levels 2 and 1 depicted on the maps on the leases as being within Corbettcourt Shopping Centre.
• The definition of the expression “the Common Parts” as –
“… the entrance doors, halls, staircases, areas, walkaways delineated on the aforementioned Map and thereon coloured blue.”
• Certain rights which were reserved by the lessor, which were introduced by the words “reserving unto the lessor”, namely:
(a) reservation 3 which is in the following terms:
“The right at any time to build on, alter, add to, extend or redevelop any other part of Corbettcourt Shopping Mall or adjoining or nearby premises notwithstanding any interference with the access of light or air to the demised premises and the right to vary or permit the variation of the present or any future scheme, layout or use of Corbettcourt Shopping Mall and the lessee shall not be entitled to any compensation whatever in respect of such variation.”
(b) Reservation 6 which reserves unto the lessor –
“The right to control, regulate and limit the traffic (vehicular and otherwise) into, from and within the Corbettcourt Shopping Mall and in particular to regulate the delivery and storage of stocks and goods.”
• Covenant 34 of the lessee’s covenants in which the lessee covenants –
“Not to load or unload any goods or materials from vans or other vehicles or convey the same from or into the demised premises except over and by the Goods Inwards Access situated at the rear of the Corbettcourt Shopping Mall.”
On the evidence I am satisfied that the Goods Inwards Access was the car park delivery doors and the access to it within the concrete building.
The lease of Unit No. F restricted its use to use “as a store for the goods supplied in the plaintiffs’ shops in other parts of Corbettcourt Shopping Mall”. There was a provision in the lease of Unit No. F, which was not in the other two leases, in the following terms:
“The Lessor shall determine at all times the hours allowed for the delivery and movement of goods, merchandise or other articles to or from the demised premises through the entrance doors, staircases, walkways lifts or other circulation areas forming part of the ‘common parts'”.
The plaintiffs trade in the retail units under the name “Options”. They sell giftware, mainly small items, in Unit No. 11. They sell heavier and bulkier items, kitchenware and tableware, in Unit No. 12. Bulk purchase of the merchandise retailed in Unit No. 12 was part of the plaintiffs’ business plan from the outset and was the motivation for taking a lease of Unit No. F.
Closure of the car park
By letter 17th November, 1997 the first defendant advised the plaintiff that the carpark was scheduled to close that week and intermittently thereafter until it closed permanently to allow for the development of the area. The plaintiffs were informed that when the area was closed there would be no access to the chute they were then currently using for incoming stock and they would be required to use the Eyre Square Centre loading bay or Ballalley Lane for the intake of stock. On the evidence it would appear that because the pre-Christmas trading period was approaching, the closure was deferred.
Nonetheless, the plaintiffs through their solicitors by letter dated 21st November, 1997 objected to the proposal to close the yard contending that the first defendant could not unilaterally change the terms of the lease, and, in particular, they relied on clause 34 suggesting that the Goods Inwards Access mentioned in that provision was the chute facility. The unsatisfactory nature of the alternative accesses suggested was pointed out. The solicitors’ letter was not replied to until 4th February, 1998 when the first defendant’s then solicitors wrote to the plaintiffs’ solicitors. In that letter, it was stated that the Goods Inwards Access referred to in the leases was the car park delivery doors at Level 2 which comprised “part of the demise of your client’s retail premises”. It was pointed out that it did not refer to the area surrounding the chute which leads to unit No. F. Notice was given that the first defendant would be closing the car delivery access doors as and from 8th February, 1998 and that future access to the rear of Level 2 would be via the ramp doors only. It was also intimated that there would be temporary interference with this access while development was taking place. Once again, it was suggested that there was suitable alternative access available through the loading bay at the Eyre Square Shopping Centre, through Ballalley Lane and also through the main entrance of Corbettcourt Shopping Mall. In relation to the chute, it was asserted that the plaintiffs only had a revocable licence to use it and that the area surrounding it was not part of the common areas. The plaintiffs were given notice that the licence to use the chute was being revoked from 8th February, 1998.
On the following day, 5th February, 1998 the first defendant notified the plaintiffs by letter that the car park would be closed from 9th February, 1998 and there would be no access to it. From that date the waste compactor would be located in Ballalley Lane and all stock deliveries would have to be received either through the Eyre Square Shopping Centre loading bay or the entrance of Corbettcourt Shopping Mall or through Ballalley Lane.
Although the planning permission for the development of the carpark area did not issue until 1st September, 1998, the closure of the carpark area took effect on 9th February, 1998 to facilitate the archaeological resolution of the development site. Thereupon all access to the car delivery doors and the hatch doors terminated permanently. In the case of the ramp doors, access terminated and was only resumed around September, 2003 via Barrack Lane, Castle Street, the passage within Edward Square Shopping Centre past the coffee shop and through the porch entrance.
The Issues
The issues which arise in determining the liability of the defendants are:
(1) What rights did the plaintiffs acquire, as lessees, over the car park and the loading area and through the car park loading doors and the hatch doors?
(2) Have the plaintiffs’ rights been interfered in such a manner as to give rise to a cause of action on the part of the plaintiffs?
These issues fall to be determined in accordance with the proper construction of the terms of the leases and the application of well established legal principles.
The plaintiffs’ rights
In each of the leases the lessees were given the express right to use the car park delivery doors and the internal common parts for receiving deliveries of stock and materials. Indeed, the plaintiffs were effectively mandated by covenant 34 to receive deliveries by this route and no other. Further, it is clear on the evidence that it was the common intention of the parties that the car park delivery doors would be accessed over the car park and loading area from the public roads at Castle Street/Barrack Lane or Whitehall and that loading and unloading would take place in the loading area. Therefore, the plaintiffs acquired rights by implication to give effect to that common intention. Absent such implied rights, the express right granted in each lease would be ineffective. The defendants conceded as much – properly, in my view. The express and implied rights were easements.
The agreement under which the plaintiffs used the hatch doors and the chute for receiving deliveries was a separate agreement, which post-dated the grant of the leases. In my view, the nature of the agreement was correctly characterised in the letter dated 4th February, 1998 as a revocable licence. The first defendant was entitled to revoke the licence on reasonable notice. In reality, the plaintiffs got no notice.
The case made on behalf of the defendants was that, in reliance on reservations 3 and 6, the first defendant, as lessor, was entitled as of right to deprive the plaintiffs of use of the car park delivery doors, the hatch doors, the loading area and access through the car park.
The principles applicable to the construction of grants and reservations of easements are stated as follows in Wiley on Irish Land Law, 3rd ed. at para. 6.058:
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the relevant conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that, in cases of doubt, (e.g. over the exact scope of the easement or profit), a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor.”
In my view neither reservation 3 nor reservation 6 is the reservation of an easement which is to be treated as a re-grant in the sense envisaged in the foregoing passage. Rather, they are provisions which are designed to ensure that the lessor is free to deal with property adjacent to the demised premises to the extent expressly provided. In any event, I am of the view that there is no ambiguity in, or doubt about, the scope of those provisions.
Wiley deals with the second principle in para. 6.059 in the following terms:
“As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land.”
The effect of clauses permitting development is specifically considered in Gale on Easements, 16th ed., at p. 472 in the following passage:-
“It is quite common, particularly in leases, to find the grant of an easement qualified by a reservation of a right to develop or alter the servient tenement in such manner as the servient owner shall think fit, notwithstanding that the access of light or air to the dominant tenement and (sometimes) any other easement appurtenant to the dominant tenement may be obstructed or interfered with. The effect of such a provision is a matter of construction in each case but the court will lean against a construction which would entitle the servient owner to deprive the dominant tenement of all access of light and air or the whole benefit of any other easement such as a right of access. Such a provision may however, permit acts which would otherwise amount to an unjustified obstruction to or interference with an easement and would otherwise be an actionable nuisance but not acts which would for practical purposes destroy the easement. In that case the servient owner can obstruct or interfere with a dominant owner’s rights, provided the dominant owner is left with reasonable enjoyment of them, though not necessarily in so convenient a manner or to such an extent as at the date of grant. So, where leases of flats contained a grant of rights of access over the forecourt but also such a provision as is under discussion, and the landlord wished to delineate parking spaces on the forecourt with lockable posts and grant exclusive licences of the spaces, it was held that he was entitled to do so, despite the fact that the scheme proposed would substantially interfere with the rights of access granted by the leases and otherwise amount to an actionable nuisance.
As a matter of construction, in my view, reservation 3 contains two separate and distinct provisions for the benefit of the lessor. The first gives the lessor the right to develop property adjoining the demised premises notwithstanding that such development would otherwise constitute an actionable nuisance because of interference with the access of light or air to the demised premises. The first limb of reservation 3 does not, either expressly or by implication, provide that the lessor is free to develop adjoining property in a manner which would interfere with the express and implied rights to receive and make deliveries through the car park delivery doors and access via the car park and loading area which were demised to the plaintiffs as lessees. The freedom which the second limb of reservation 3 reserved to the lessor must be construed, applying the principle of non-derogation from grant, as permitting the lessor only to vary the scheme, layout and use of Corbettcourt Shopping Mall other than the premises demised to the plaintiffs in a manner which would not deprive the plaintiffs of the reasonable enjoyment of the easements and rights acquired by them under the leases.
In relation to reservation 6, counsel for the plaintiffs submitted that, as a matter of construction, regulation of delivery of stock and goods does not encompass the prevention of such delivery and, in this connection, he referred to Stroud’s Judicial Dictionary of Words and Phrases, 6th ed. at vol. 3, at p. 2239. In my view, applying the principle of non-derogation from grant, reservation 6 does not entitle the lessor to effectively confiscate the express and implied rights to receive and make deliveries and of access which the plaintiffs acquired under the leases.
Accordingly, the provisions of the leases and, in particular, the provisions of reservations 3 and 6, did not entitle the first defendant to block up the car park delivery doors and to prevent the plaintiffs receiving and making deliveries through those doors from the loading area and to traverse the car parking areas from either Barrack Lane/Castle Street or Whitehall to access those doors.
Interference so as to give rise to a cause of action?
As is pointed out in Bland on The Law of Easements and Profits à Prendre at p.56, to constitute a disturbance with an easement of way there must be a real substantial interference with it.
In this case, the factual position is that there has been a total obstruction of the plaintiffs’ use of the car park delivery doors since February 1998 and this obstruction is permanent. Between February, 1998 and September, 2003 there was no access at all over the car parking area to any part of the rear of Corbettcourt Shopping Mall. Since September, 2003 there is a limited access from Barrack Lane via the passage which was formerly part of the car parking area, past the coffee shop through the porch entrance. I accept the evidence of the first plaintiff that this route is totally unsuitable and impractical for effecting deliveries to and from the plaintiffs’ retail units and that it is not used by them. Indeed, Mr. Corbett’s evidence was that this route is not used frequently and that deliveries are either brought in through the main entrance at Williamsgate Street or via Ballalley Lane. On the evidence I find that there has been a real and substantial interference with the express and implied rights acquired by the plaintiffs under the leases. It is no answer for the defendants to say that the other routes (the main entrance at Williamsgate Street, Ballalley Lane and the Eyre Square Shopping Centre loading bay) are still available to the plaintiffs. The plaintiffs have been deprived, not only of the most convenient route, but of the only suitable route for efficient bulk deliveries of the merchandise retailed in Unit No. 12 in contravention of their rights.
Conclusion
Accordingly, I conclude that the plaintiffs have established liability on the part of the defendants.
Bennett Construction Limited v Greene
unreported, Supreme Court, February 25, 2004
JUDGMENT delivered the 25th day of February 2004, by Keane C.J. [Nem Diss]
The defendants were the owners in the year 2000 of a plot of land at Clonroche, Co. Wexford. They had originally intended to develop the land for housing and to that end the first named defendant applied for, and was granted, an outline planning permission for the erection of eighteen dwelling houses. The decision to grant outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site.
Because of family circumstances, the defendants decided not to proceed with the development and to sell the site with the benefit of the outline permission. They also decided, however, to retain part of the site as shown on the site layout plan. The drain for the disposal of the sewage was shown on the site layout plan as crossing that land. That is what has given rise to the present litigation.
Mr. William Bennett (the proprietor of the plaintiff / appellant company and hereafter referred to as “the plaintiff”) was interested in acquiring the site being offered for sale by the defendants. He met the first named defendant towards the end of January 2000 and it is not in dispute that they agreed at that meeting on a purchase price of £250,000.00. It is also accepted by the parties that, at that meeting, the plaintiff made it clear that he would not be interested in proceeding with the purchase unless what is usually referred to as a “full planning permission” was available in respect of the proposed housing development. The draft contract for sale of the land was sent by the defendants’ solicitors to the plaintiff’s solicitors on the 20th April, 2000 and returned to them signed on behalf of the plaintiff on the 28th April. Condition 4 of the special conditions provided that
“The property is subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property, the closing date shall be one month from the grant of planning permission. In the event that the said planning permission has not issued within six months from the date hereof either party shall be entitled to rescind this contract and the purchaser will be refunded his deposit in full without interest costs or compensation.”
Since there was already available an outline permission for the erection of eighteen dwelling houses on the lands being sold, it is accepted by both parties that the reference to the purchaser obtaining “planning permission” was either to an approval obtained by him consequent on the outline permission or a “full” permission (i.e. not an outline permission).
Under the heading “Documents Schedule”, two documents were referred to in the contract, i.e. “folio 11353 F”, in which the lands being sold were registered, and “Outline planning permission register reference 991372”. Paragraph 6 of the General Conditions provided that
“The documents specified in the documents schedule or copies thereof have been available for inspection by the purchaser or his solicitor prior to the sale. Where any of the subject property is stated in the particulars or in the special conditions to be held under a lease or to be subject to any covenants, conditions, rights, liabilities or restrictions, and the lease or other document containing the same is specified in the documents schedule, the purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased with full knowledge of the contents thereof, notwithstanding any partial statement of such contents in the particulars or conditions.”
On the 8th June, 2000, the contract was executed by the defendants. On the 17th November, 2000 the planning authority issued an approval for the development of the eighteen houses.
The sale was completed by the execution of a transfer of the land and the payment of the purchase money on the 31st January, 2001. Before that happened, however, the question as to whether the plaintiff was required to pay interest on the balance of the purchase money outstanding was discussed directly between the plaintiff and the first named defendant. The plaintiff, having been informed through his solicitors that the first named defendant was requiring the payment of the interest, there was a telephone conversation between them on the 1st or 2nd February at which the first named defendant confirmed to the plaintiff that he would have to pay the interest and, in response to a query from the plaintiff, also made it clear that he was not prepared to allow the drain for the disposal of the sewage to cross the land retained by him as shown on the site layout plan lodged for the purpose of obtaining the outline permission.
The defendants having maintained their attitude that they were not prepared to allow the plaintiff to lay a drain for the disposal of the sewage across the land retained by them, the present proceedings were issued. In the statement of claim, the plaintiff claimed inter alia an injunction restraining the defendants from preventing the plaintiff’s exercise of what was described as the “way leave” set out on the site layout plan. A defence having been delivered on behalf of the defendants denying that the plaintiff was entitled to any of the relief claimed, the action came on for hearing before O’Higgins J. In the course of evidence, the plaintiff said that, at the meeting in January 2000, where he and the first named defendant had agreed on the sale of the land for the specified sum and that it should be subject to full planning permission, the first named defendant showed him the site layout plan. He said that he indicated to the defendant where the plan showed the entrance to the site to be and where the sewage went out and the first named defendant agreed that that was what the plan showed. The first named defendant in his evidence denied that there was any discussion as to the sewage at that meeting.
There was also produced in evidence a record of an attendance by the solicitor for the first named defendant on his client dated the 8th March, 2000 which records:
“[The first named defendant] said in the outline permission the sewer pipe comes through the supermarket property onto the main street.
“He said that he wants the builder to take the sewage through the opening / entrance.”
The plaintiff in his evidence said that the cost of bringing the sewage out through the main entrance would be in excess of £120,000.00 and that he would not have bought the site if he had known that the defendants would not permit him to dispose of the sewage in the manner indicated on the site layout plan.
The trial judge, in his judgment, said that he preferred the evidence of the first named defendant to that of the plaintiff as to what had transpired at the meeting towards the end of January 2000 where the price for the land was agreed and that he was, accordingly, satisfied that there was no discussion as to the sewage at that meeting. He rejected the submission advanced on behalf of the plaintiff that the inclusion of the planning permission as one of the scheduled documents in the contract for sale meant that the contract was subject to an implied condition that the defendants would grant the plaintiff the way leave in question across the retained land and the further submission that the defendants in refusing to grant such a way leave were derogating from their grant of the land to the plaintiff, thereby entitling the plaintiff to the relief sought. From that judgment, the plaintiff has now appealed to this court.
At the outset, Mr. George Brady S.C. on behalf of the plaintiff accepted that this court could not disturb the finding of the trial judge as to the credibility respectively of the plaintiff and the first named defendant. He submitted, however, that the trial judge had erred in law in concluding that the actions of the defendants in declining to allow the plaintiff to dispose of the sewage in the manner indicated in the site layout plan had not derogated from their grant of the land. He said that where, as here, the land had been sold for a specific purpose known to both parties, i.e. the development of the land as shown on the site layout plan on the basis of which the outline permission had been granted, and the uncontradicted evidence established that it would be prohibitively expensive for the plaintiff to develop the land in any other way so far as the disposal of the sewage was concerned, the conduct of the defendants in refusing to allow the development proceed in that manner constituted a derogation from the grant of the land. He cited in support of this submission the decision of Barron J., sitting as a High Court judge, in Connell –v- O’Malley (unreported; judgment delivered 28th July, 1983). He also relied on the provisions of s. 6 of the Conveyancing Act, 1881.
Alternatively, Mr. Brady submitted that, in the circumstances of this case the doctrine of promissory estoppel applied and that the defendants, having represented to the plaintiff that the line of the sewage disposal would cross the land retained by them, should not be permitted to act in a manner inconsistent with that representation where it had been acted on, to his detriment, by the plaintiff, citing Daly –v- Minister for the Marine & Ors [2001] 3 IR 513.
On behalf of the defendants, Mr. Patrick Keane S.C. submitted that the defendants had agreed to no more than the transfer of the land described in the contract for sale for the specified price and did not agree to grant any way leave over the retained land. Since there was no way leave in existence at the date of the contract and the defendants had not in any way obstructed the exercise by the plaintiff of an existing easement or quasi-easement, there was no room for the application of the principle that a grantor should not be allowed to derogate from his grant. As to the claim based on promissory estoppel, Mr. Keane submitted that, having regard in particular to the finding of the trial judge as to the conversations between the plaintiff and the first named defendant and the undisputed evidence that the defendants had never promised that they would allow the plaintiff to lay a pipe across the retained land for the purpose of disposing of the sewage, that doctrine had no application.
As to the first submission advanced by Mr. Brady, there is little modern Irish authority on the principle that a grantor cannot derogate from his grant, although the law is helpfully reviewed by Barron J. in Connell –v- O’Malley., as yet unreported but noted at (1984) ILRM 563. Since Mr. Brady strongly relied on that judgment, the facts of the case should first be summarised.
The plaintiff had purchased a site at Navan from the defendant which had the benefit of outline planning permission for the erection of five dwelling houses. The site was formerly part of the defendant’s residential farm and was approached by a private laneway over his land. The plaintiff believed that this laneway would be taken in charge by the Meath County Council. There was protracted litigation between the parties and the defendant erected a gate which could close off the laneway, as a result of which the local authority refused to take it in charge. The plaintiff claimed an injunction restraining the defendant from maintaining any obstruction on the laneway on the ground that he was acting in derogation of his grant.
Barron J. found that, while the site could still be used for the erection of five dwelling houses, they would be very difficult to sell unless the laneway was taken in charge. Since the defendant knew that the site was being purchased for a housing development, he concluded that the only reasonable inference from the defendant’s conduct was that he was deliberately obstructing the laneway so as to ensure that the site would not be developed. In these circumstances, he held that the defendant’s conduct amounted to an attempt to derogate from his grant which should be restrained by the court.
Barron J. stated the law to be as follows:
“The doctrine of derogation from grant imposes implied obligations which arise when the owner of land disposes of part of it while retaining the balance. The most usual application is in relation to easements, but it is not limited to the creation of easements by implied grant. The obligations which are implied depend upon the particular nature of the transaction and arise from the presumed intention of the parties.”
Having referred to a contention on behalf of the defendant that the restriction which the plaintiff was seeking was one which he could have ensured was reserved to him by the contract of sale, Barron J. said, in a passage which was strongly relied on by Mr. Brady:
“When there are quasi-easements, then, on a sale of part of the land, the grantee does not have to contract specifically to retain the benefit of such rights for the benefit of the land granted, because they are implied. But, if the grantor wishes to retain quasi-easements for the benefit of the land retained, he must specifically reserve them. It is correct that the purchaser must protect himself specifically when the grantor could not anticipate that he would require such protection, but that is not the case here. I reject this defence.”
That, however, was said by the learned judge in a case where a defined right of way over land retained by the grantor giving access to the land transferred to the grantee was in existence at the date of the grant and its obstruction by the grantor rendered the land granted significantly less capable of development.
That is patently not the case here. At the time of the sale, there was not in existence an easement in the nature of a way leave which, when part of the land was sold, remained in existence as a quasi-easement for the benefit of the lands sold.
The law was thus stated by Thesiger L.J. in the leading case of Wheeldon –v- Burrows [1878] 12 Ch.D 31:
“We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which had been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.” [Emphasis added]
That was stated by Ross J. in the Irish case of Head –v- Meara [1912] 1 IR 262 to be a specific application of the principle that a man must not derogate from his own grant.
In a modern Irish textbook on the subject, The Law of Easements and Profits a Prendre by Peter Bland, the law is stated clearly and succinctly as follows at para 1206
“For the quasi-easement (or accommodation) to be converted into an easement on the severance of the quasi-dominant and quasi-servient tenements, the accommodation must be capable of existing as an easement and it must have been used at the time of the grant by the grantor for the benefit of the property granted over the property retained.”
The defendants in this case had never at any stage used any part of their land for the disposal of sewage by means of a pipe connecting with the main sewers of the local authority. They did no more than indicate in the site layout plan lodged with the application for permission that that was how they would propose to dispose of the sewage, in the event of permission being granted for the development and the development proceeding. There was, accordingly, no easement in existence being used at the time of the grant by the grantor for the benefit of the property granted over the property retained and hence no room for the application of the doctrine that the grantor cannot derogate from his grant.
Section 6 of the Conveyancing Act, 1881, on which Mr. Brady also relied, provides that
“A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water courses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”
Professor J.C.W. Wylie, in the second edition of Irish Conveyancing Law, describes this as one of the so-called “word saving” provisions in the Act. He observes that, while the section is often invoked to establish in favour of the purchaser the existence of easements over land retained by the vendor, it does not enlarge the rights to which the purchaser is entitled under the contract for sale.
I am satisfied that this is a correct statement of the law and that, in the case of easements, such as way leaves, the effect of the section is to ensure that any such easements in existence and appertaining to the land at the time of the conveyance pass with the conveyance. Moreover, as was made clear by Lord Wilberforce in Sovmots Ltd. –v- Environment Secretary [1979] AC 144, the section can have no application to a quasi-easement such as is claimed in this case, the reason being that
“When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.”
No doubt, the existence of an outline permission could be described as one of the “advantages” appertaining to the land. But a purchaser of the land, such as the plaintiff in the present case, becomes entitled to the benefit of that permission, not by virtue of s. 6 of the 1881 Act, but because of the general principle enshrined in s. 28(5) of the Local Government (Planning and Development) Act, 1963, that a grant of permission to develop land inures for the benefit of the land and of all persons for the time being interested therein. I have no doubt that that is what Henchy J. was indicating in the case of Readymix (Eire) Ltd. –v- Dublin County Council & Anor (unreported; Supreme Court; judgments delivered July 30th, 1974) when he referred to a planning permission as “an appendage to the title”. The fact that it is not personal to the successful applicant for the permission and may be utilised by any person who subsequently acquires a legal interest in the property does not convert it into a document of title in any sense. That is put beyond doubt by s. 26(11) of the same Act which provides that
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It follows that the plaintiff in the present case, in implementing the planning permission, was in no different position so far as the disposal of the sewage was concerned than if it had been shown in the layout plan as crossing the land of a third party to whom the defendants had sold the land subsequent to the obtaining of the permission.
As to the alternative argument advanced by Mr. Brady, that the plaintiff was entitled to rely on the doctrine of promissory estoppel, the law on that topic was stated as follows by Griffin J. in the decision of this court in Doran –v- Thompson Ltd. [1978] IR 223:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance.”
That passage, which was also adopted by Fennelly J. speaking for the court in Daly –v- Minister for the Marine [2001] 3 IR 513, is undoubtedly an authoritative statement of the law on promissory estoppel. It is, however, of no assistance to the plaintiff in the present case, because he has failed to establish the existence of “a clear and unambiguous promise or assurance” by the defendants to grant him a way leave over the retained land. On the contrary, even on his own account, which was not accepted by the trial judge, there was no such promise or assurance: the first named defendant did no more than agree that the plan showed the sewage as being disposed of by a pipe crossing the land to be retained by the defendants. Both the attendance of the defendants’ solicitor recording the first named defendant’s insistence that the sewage should not be disposed of in that manner and the subsequent seeking by the plaintiff of an assurance from the first named defendant that he would be permitted so to dispose of the sewage are entirely inconsistent with any such unambiguous promise or assurance having been given by the defendants to the plaintiff before or at the time the contract was executed by the parties.
Conneran & Anor v. Corbett and Sons Ltd. & Anor
[2004] IEHC 389
Judgment of Miss Justice Laffoy delivered on the 15th day of December, 2004.
The plaintiffs’ claim
The plaintiffs hold three units, two retail units and a storage unit, in Corbettcourt Shopping Mall in Galway as lessees from the first defendant. In broad terms, they claim that rights in the nature of easements to bring in deliveries of stock and material for their retail units through a car park and into a loading area which formerly existed have been wrongfully destroyed by development of the car park and the loading area. At the time the plaintiffs’ leases were created the first defendant was the owner of the car park and loading area. Subsequently, the first defendant sold the area which has been developed to the second defendant which carried out the development.
It is agreed between the parties that the court should determine the issue of liability first and leave over the question of quantification of any damages to which the plaintiffs are entitled.
Geography
One of the most difficult aspects of this case has been understanding the geography of the plaintiffs’ units and their environs.
Corbettcourt Shopping Mall fronts onto Williamsgate Street in Galway. During the last century the Corbett family carried on a retail business in the premises at Williamsgate Street. On 16th August, 1970 these premises were burned to the ground. The first defendant applied for planning permission to reconstruct the retail premises. Galway Corporation granted permission on 19th September, 1972 (Register Reference No. 65/72) subject to three conditions. Condition 3 provided as follows:
“The car parking facility and the goods loading and unloading bays to be provided in the Castle Barracks Yard shall have capacities at least equal to those of the respective former similar facilities in the same area and they shall be operative and available for use simultaneously with the opening for use of the proposed development.”
The car park referred to in condition 3 was not directly behind the retail premises. It was to the rear of premises fronting on to Williamsgate Street to the west of the premises of the first defendant. In the past it could be accessed via Castle Street and Barrack Lane from William Street to the north or, alternatively, from Whitehall on the south.
In the mid to late 1980s a large shopping complex was developed to the south of the premises of the first defendant with frontage on to Eyre Square and Merchants Road. This shopping centre came to be known as the Eyre Square Shopping Centre.
Around the same time, the first defendant decided to create a shopping mall in its premises at Williamsgate Street by sub-dividing the premises into retail units. Since its reconstruction following the fire the first defendant had been using these premises as a department store. In April, 1986 the first defendant, through its architectural advisor, sought confirmation from the planning authority, Galway Corporation, that its proposal would be an exempt development. By letter dated 23rd April, 1986 it was confirmed by Galway Corporation that the proposed sub-division into small retail shop units of the retail shopping area the subject of the planning permission dated 19th September, 1972 would constitute an exempt development. The letter seeking confirmation had enclosed a layout plan showing the building in relation to the car parking area and had indicated that there were approximately 100 car parking spaces in the car parking area at that juncture.
Part of the Eyre Square Shopping Centre was contiguous with the rear of the first defendant’s shopping mall. In 1991, as part of an arrangement with the owners of the Eyre Square Shopping Centre, the first defendant acquired title to the premises which became Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall and also a right of way over the common areas within the Eyre Square Shopping Centre.
The position on the ground in 1991, when the plaintiffs first took a lease in Corbettcourt Shopping Mall, was as follows:
(a) Unit No. 11, which formerly had been part of Eyre Square Shopping Centre, was on the ground floor level (level 2) of Corbettcourt Shopping Mall.
(b) Unit No. 12, which had formerly been part of Eyre Square Shopping Centre, was located at lower ground floor or basement level (level 1) in Corbettcourt Shopping Mall. Unit No. 12 was directly under and was a mirror image of Unit No. 11.
(c) To the west of the building which contained Unit No. 11 and Unit No. 12 there was a multi-storey concrete building, which for the sake of clarity I will refer to as the concrete building, which had been built in 1974 as the last phase of the reconstruction following the fire. The basement or lower ground floor area of that building was incorporated in Corbettcourt Shopping Mall at level 1. There was also incorporated in Corbettcourt Shopping Mall at level 2 an internal access or passage which connected Corbettcourt Shopping Centre with double steel doors which opened to the loading area located on the northernmost part of the car park. I will refer to these doors as the car park delivery doors. Level 1 was a few feet higher than the exterior ground level on the car park side, so that the car park delivery doors were above exterior ground level to the same extent. However, on the external wall of the concrete building just to the north of the car park delivery doors there were two hatch doors, which I will refer to as the hatch doors, which were at ground level on the car park side and opened into level 1 of the concrete building below the ceiling at that level.
(d) The car park, other than the loading area, was laid out in car park spaces. However, there were existing buildings within the area of the car park, one of them being Corbett House, a modern building which contained four units which had shop fronts both to Barrack Lane and also to the car park.
(e) There was also access from the car park into Corbettcourt Shopping Mall via a ramp which led to double doors, which I will refer to as the ramp doors.
By the mid 1990s, a number of changes had taken place on the ground. A barrier was erected across the entrance to the loading area. There were two notices affixed to the barrier, one which indicated that it was a loading area and strictly prohibited parking day or night. The other indicated that any car obstructing access to the loading bay would be wheel-clamped. Within the concrete building at level 1 a storage unit, Unit No. F, had been created and leased to the plaintiffs. Subsequent to the creation of the lease a chute had been constructed inside the hatch doors so that goods could be delivered to level 1 via the hatch doors and down the chute. Previously, when the concrete building was used for storage by the first defendant, there had been an opening at each floor level, which created what might be called a sideless shaft through which a cage and pulley block mechanism transported goods to each level of the building. However, this was in disuse by 1991 and the opening in the floor at ground floor level had been fenced for safety reasons. The chute was installed by the first defendant at the behest of the plaintiffs. On the evidence, it is clear that the chute presented a more convenient and effective delivery point for Unit No. F than the car park delivery doors. However, this is not of particular significance in the resolution of the issues which arise in these proceedings. The important point is that when the plaintiffs acquired the leases of Unit No. 12 and Unit No. F an opening into the concrete building directly off the loading area was available to them.
Throughout the 1990s the car parking areas of the car park were the subject of successive periodic licences to an individual who operated the car park.
By an agreement dated 19th April, 1996 the first defendant agreed to sell the car parking area and adjoining property to the second defendant. The sale included Corbett House. Counsel for the plaintiffs referred to two provisions of the special conditions in the agreement. Condition 5.1 provided that the sale was subject to the vehicular and pedestrian rights of way to be reserved in favour of the vendor, its successors, assignees, lessees, licensees and agents as set out on a map annexed to the contract. The map in question depicted a vehicular access from Barrack Lane going around Corbett House to the boundary with the property being retained by the first defendant. Condition 7 provided that the rights of way, both vehicular and pedestrian, presumably meaning the rights of way to which the sale was subject, might by agreement be surrendered and replaced by similar rights as outlined on another map if and when Corbett House had been demolished and a new substituted right of way was completed to the satisfaction of the first defendant. The line of the substitute vehicular access was shown on another map. Corbett House has been demolished. The evidence of the Chief Executive Officer of the first defendant, Joseph Corbett, was that arising out of the planning permission which the second defendant obtained in 1998, which is referred to later, the second defendant re-negotiated the access rights for Corbettcourt Shopping Mall. Therefore, the agreement of 19th April, 1996 on its own obviously does not tell the whole story. Apart from the re-negotiation, the map on the agreement suggests that the loading area was being retained by the first defendant, which appears to be at variance with what actually happened. In any event, I am of the view that, while conditions s. 5.1 and 7 of the agreement are consistent with the stance adopted by the defendants that the first defendant was free to dispose of the property sold to the second defendant untrammelled by any existing rights of the plaintiffs and other lessees in Corbettcourt Shopping Mall, they do not assist in the resolution of the issues which arise in this case.
The second defendant applied for planning permission to develop the property it purchased from the first defendant. Planning permission was granted by An Bord Pleanála on appeal on 1st September, 1998. The plaintiffs who had objected to the application and who were appellants on the appeal, on the ground, inter alia, that the development would interfere with their access to their units in Corbettcourt Shopping Mall for delivering goods, withdrew their appeal on payment of a sum of money, but without prejudice to their contention that their property rights were being interfered with. As regards the areas in dispute in these proceedings, the 1998 planning permission clearly superseded the 1972 permission. In any event, Unit No. 11 and Unit No. 12 were not developed under the 1972 planning permission or as an exempted development.
Edward Square Shopping Centre, which was constructed pursuant to the 1998 planning permission, now stands on the land purchased by the second defendant from the first defendant. As a consequence, there is no access from Whitehall to Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall or to the concrete building. The car park delivery doors have been blocked up, as have the hatch doors, leaving the chute defunct. The ramp is gone, the ground having been raised, and there is a porch-type entrance to Corbettcourt Shopping Mall at the location of the ramp doors, which I will refer to as the porch entrance. Deliveries to Corbettcourt Shopping Mall must now come through –
(i) the main entrance at Williamsgate Street,
(ii) Ballalley Lane,
(iii) the Eyre Square Shopping Centre loading bay, or
(iv) Castle Street and Barrack Lane and along a passage between 3.9m and 4m wide within the new development, which Mr. Corbett testified is in private ownership, past a coffee shop which is allowed to have tables, chairs and planters on the passage to the porch entrance.
Routes (i), (ii) and (iii) were in existence before the development of the Edward Square Shopping Centre. Route (iv) is a new route created during the development.
William Street and Shop Street were pedestrianised in 1998, with the effect that Castle Street and Barrack Lane are accessible by vehicles only before 11.30 am. The defendants placed some reliance on this. In my view, it is a neutral factor in the resolution of the issues which arise in this case.
The plaintiffs’ leases
The three leases in issue in these proceedings were made between the first defendant, as lessor, and the plaintiffs, as lessee. The earliest was dated 21st October, 1991 and two were dated 30th September, 1992. The premises demised were described as follows therein:
(1) In the case of the lease of 21st October, 1991, Unit No. 11, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. That map depicted only level 2. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, Unit No. 11 outlined in red and the internal common areas at that level coloured blue. The area coloured blue extended to the car park delivery doors.
(2) In the case of the first lease dated 30th September, 1992, Unit No. 12 on level 1, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. In fact, there were two maps on that lease. One depicted level 1. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, unit No. 12 outlined in red and internal common areas within Corbettcourt Shopping Mall at that level coloured blue. The second map depicted level 2, the entirety of Corbettcourt Shopping Mall at that level (including the entirety of the concrete building at that level) outlined in green and the internal access or passage leading from the car park delivery doors to the internal common areas coloured blue. When this map is compared with the map on the lease of 21st October, 1991, it becomes obvious that it does not show the layout at level 2 within the concrete building as it was in 1992. The reason for this disparity is obvious. The map on the lease of 21st October, 1991 is a later revision which, on the evidence, reflects the position on the ground. It is reasonable to infer that it was the later revision which should have been annexed to the lease of Unit No. 12.
(3) In the case of the second lease dated 30th September, 1992, Unit No. F at level 1, as more particularly delineated and outlined in red on the map endorsed thereon, was demised. There was one map on this lease which depicted the entirety of Corbettcourt Shopping Mall at level 1 outlined in green, unit F outlined in red and the internal common areas at that level coloured blue. It also showed an access or passage connecting the internal common areas to unit F coloured blue. The hatch doors were not shown and the area inside the hatch doors was not depicted as a common area.
In the case of each lease the relevant premises were demised “together with a Right of Way for the Lessee, its customers, licensees and invitees” over the “Common Parts” as defined, with an express proviso that the lessee was subject to the thereinafter mentioned conditions.
Each of the three leases created a term of 35 years and reserved a market rent and was in the standard form used for lettings in Corbettcourt Shopping Mall. The elements of the lease which were the subject of debate in these proceedings are as follows:
• The definition of the expression “the Lessor” as including, where the context so admits, “the reversioner for the time being immediately expectant upon the term hereby created”.
• The definition of “Corbettcourt Shopping Mall” which is defined as follows:
“… part of the premises situate and now known as Nos. 8 and 9, Williamsgate Street in the Parish of Saint Nicholas and in the City of Galway and more particularly the basement, ground floor and first floor and second floor thereof together with a portion of the Goods Service Building at rear as delineated on the Maps annexed hereto and thereon outlined with a this green line.”
On the evidence I am satisfied that the Goods Service Building was and is the part of the concrete building at levels 2 and 1 depicted on the maps on the leases as being within Corbettcourt Shopping Centre.
• The definition of the expression “the Common Parts” as –
“… the entrance doors, halls, staircases, areas, walkaways delineated on the aforementioned Map and thereon coloured blue.”
• Certain rights which were reserved by the lessor, which were introduced by the words “reserving unto the lessor”, namely:
(a) reservation 3 which is in the following terms:
“The right at any time to build on, alter, add to, extend or redevelop any other part of Corbettcourt Shopping Mall or adjoining or nearby premises notwithstanding any interference with the access of light or air to the demised premises and the right to vary or permit the variation of the present or any future scheme, layout or use of Corbettcourt Shopping Mall and the lessee shall not be entitled to any compensation whatever in respect of such variation.”
(b) Reservation 6 which reserves unto the lessor –
“The right to control, regulate and limit the traffic (vehicular and otherwise) into, from and within the Corbettcourt Shopping Mall and in particular to regulate the delivery and storage of stocks and goods.”
• Covenant 34 of the lessee’s covenants in which the lessee covenants –
“Not to load or unload any goods or materials from vans or other vehicles or convey the same from or into the demised premises except over and by the Goods Inwards Access situated at the rear of the Corbettcourt Shopping Mall.”
On the evidence I am satisfied that the Goods Inwards Access was the car park delivery doors and the access to it within the concrete building.
The lease of Unit No. F restricted its use to use “as a store for the goods supplied in the plaintiffs’ shops in other parts of Corbettcourt Shopping Mall”. There was a provision in the lease of Unit No. F, which was not in the other two leases, in the following terms:
“The Lessor shall determine at all times the hours allowed for the delivery and movement of goods, merchandise or other articles to or from the demised premises through the entrance doors, staircases, walkways lifts or other circulation areas forming part of the ‘common parts'”.
The plaintiffs trade in the retail units under the name “Options”. They sell giftware, mainly small items, in Unit No. 11. They sell heavier and bulkier items, kitchenware and tableware, in Unit No. 12. Bulk purchase of the merchandise retailed in Unit No. 12 was part of the plaintiffs’ business plan from the outset and was the motivation for taking a lease of Unit No. F.
Closure of the car park
By letter 17th November, 1997 the first defendant advised the plaintiff that the carpark was scheduled to close that week and intermittently thereafter until it closed permanently to allow for the development of the area. The plaintiffs were informed that when the area was closed there would be no access to the chute they were then currently using for incoming stock and they would be required to use the Eyre Square Centre loading bay or Ballalley Lane for the intake of stock. On the evidence it would appear that because the pre-Christmas trading period was approaching, the closure was deferred.
Nonetheless, the plaintiffs through their solicitors by letter dated 21st November, 1997 objected to the proposal to close the yard contending that the first defendant could not unilaterally change the terms of the lease, and, in particular, they relied on clause 34 suggesting that the Goods Inwards Access mentioned in that provision was the chute facility. The unsatisfactory nature of the alternative accesses suggested was pointed out. The solicitors’ letter was not replied to until 4th February, 1998 when the first defendant’s then solicitors wrote to the plaintiffs’ solicitors. In that letter, it was stated that the Goods Inwards Access referred to in the leases was the car park delivery doors at Level 2 which comprised “part of the demise of your client’s retail premises”. It was pointed out that it did not refer to the area surrounding the chute which leads to unit No. F. Notice was given that the first defendant would be closing the car delivery access doors as and from 8th February, 1998 and that future access to the rear of Level 2 would be via the ramp doors only. It was also intimated that there would be temporary interference with this access while development was taking place. Once again, it was suggested that there was suitable alternative access available through the loading bay at the Eyre Square Shopping Centre, through Ballalley Lane and also through the main entrance of Corbettcourt Shopping Mall. In relation to the chute, it was asserted that the plaintiffs only had a revocable licence to use it and that the area surrounding it was not part of the common areas. The plaintiffs were given notice that the licence to use the chute was being revoked from 8th February, 1998.
On the following day, 5th February, 1998 the first defendant notified the plaintiffs by letter that the car park would be closed from 9th February, 1998 and there would be no access to it. From that date the waste compactor would be located in Ballalley Lane and all stock deliveries would have to be received either through the Eyre Square Shopping Centre loading bay or the entrance of Corbettcourt Shopping Mall or through Ballalley Lane.
Although the planning permission for the development of the carpark area did not issue until 1st September, 1998, the closure of the carpark area took effect on 9th February, 1998 to facilitate the archaeological resolution of the development site. Thereupon all access to the car delivery doors and the hatch doors terminated permanently. In the case of the ramp doors, access terminated and was only resumed around September, 2003 via Barrack Lane, Castle Street, the passage within Edward Square Shopping Centre past the coffee shop and through the porch entrance.
The Issues
The issues which arise in determining the liability of the defendants are:
(1) What rights did the plaintiffs acquire, as lessees, over the car park and the loading area and through the car park loading doors and the hatch doors?
(2) Have the plaintiffs’ rights been interfered in such a manner as to give rise to a cause of action on the part of the plaintiffs?
These issues fall to be determined in accordance with the proper construction of the terms of the leases and the application of well established legal principles.
The plaintiffs’ rights
In each of the leases the lessees were given the express right to use the car park delivery doors and the internal common parts for receiving deliveries of stock and materials. Indeed, the plaintiffs were effectively mandated by covenant 34 to receive deliveries by this route and no other. Further, it is clear on the evidence that it was the common intention of the parties that the car park delivery doors would be accessed over the car park and loading area from the public roads at Castle Street/Barrack Lane or Whitehall and that loading and unloading would take place in the loading area. Therefore, the plaintiffs acquired rights by implication to give effect to that common intention. Absent such implied rights, the express right granted in each lease would be ineffective. The defendants conceded as much – properly, in my view. The express and implied rights were easements.
The agreement under which the plaintiffs used the hatch doors and the chute for receiving deliveries was a separate agreement, which post-dated the grant of the leases. In my view, the nature of the agreement was correctly characterised in the letter dated 4th February, 1998 as a revocable licence. The first defendant was entitled to revoke the licence on reasonable notice. In reality, the plaintiffs got no notice.
The case made on behalf of the defendants was that, in reliance on reservations 3 and 6, the first defendant, as lessor, was entitled as of right to deprive the plaintiffs of use of the car park delivery doors, the hatch doors, the loading area and access through the car park.
The principles applicable to the construction of grants and reservations of easements are stated as follows in Wiley on Irish Land Law, 3rd ed. at para. 6.058:
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the relevant conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that, in cases of doubt, (e.g. over the exact scope of the easement or profit), a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor.”
In my view neither reservation 3 nor reservation 6 is the reservation of an easement which is to be treated as a re-grant in the sense envisaged in the foregoing passage. Rather, they are provisions which are designed to ensure that the lessor is free to deal with property adjacent to the demised premises to the extent expressly provided. In any event, I am of the view that there is no ambiguity in, or doubt about, the scope of those provisions.
Wiley deals with the second principle in para. 6.059 in the following terms:
“As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land.”
The effect of clauses permitting development is specifically considered in Gale on Easements, 16th ed., at p. 472 in the following passage:-
“It is quite common, particularly in leases, to find the grant of an easement qualified by a reservation of a right to develop or alter the servient tenement in such manner as the servient owner shall think fit, notwithstanding that the access of light or air to the dominant tenement and (sometimes) any other easement appurtenant to the dominant tenement may be obstructed or interfered with. The effect of such a provision is a matter of construction in each case but the court will lean against a construction which would entitle the servient owner to deprive the dominant tenement of all access of light and air or the whole benefit of any other easement such as a right of access. Such a provision may however, permit acts which would otherwise amount to an unjustified obstruction to or interference with an easement and would otherwise be an actionable nuisance but not acts which would for practical purposes destroy the easement. In that case the servient owner can obstruct or interfere with a dominant owner’s rights, provided the dominant owner is left with reasonable enjoyment of them, though not necessarily in so convenient a manner or to such an extent as at the date of grant. So, where leases of flats contained a grant of rights of access over the forecourt but also such a provision as is under discussion, and the landlord wished to delineate parking spaces on the forecourt with lockable posts and grant exclusive licences of the spaces, it was held that he was entitled to do so, despite the fact that the scheme proposed would substantially interfere with the rights of access granted by the leases and otherwise amount to an actionable nuisance.
As a matter of construction, in my view, reservation 3 contains two separate and distinct provisions for the benefit of the lessor. The first gives the lessor the right to develop property adjoining the demised premises notwithstanding that such development would otherwise constitute an actionable nuisance because of interference with the access of light or air to the demised premises. The first limb of reservation 3 does not, either expressly or by implication, provide that the lessor is free to develop adjoining property in a manner which would interfere with the express and implied rights to receive and make deliveries through the car park delivery doors and access via the car park and loading area which were demised to the plaintiffs as lessees. The freedom which the second limb of reservation 3 reserved to the lessor must be construed, applying the principle of non-derogation from grant, as permitting the lessor only to vary the scheme, layout and use of Corbettcourt Shopping Mall other than the premises demised to the plaintiffs in a manner which would not deprive the plaintiffs of the reasonable enjoyment of the easements and rights acquired by them under the leases.
In relation to reservation 6, counsel for the plaintiffs submitted that, as a matter of construction, regulation of delivery of stock and goods does not encompass the prevention of such delivery and, in this connection, he referred to Stroud’s Judicial Dictionary of Words and Phrases, 6th ed. at vol. 3, at p. 2239. In my view, applying the principle of non-derogation from grant, reservation 6 does not entitle the lessor to effectively confiscate the express and implied rights to receive and make deliveries and of access which the plaintiffs acquired under the leases.
Accordingly, the provisions of the leases and, in particular, the provisions of reservations 3 and 6, did not entitle the first defendant to block up the car park delivery doors and to prevent the plaintiffs receiving and making deliveries through those doors from the loading area and to traverse the car parking areas from either Barrack Lane/Castle Street or Whitehall to access those doors.
Interference so as to give rise to a cause of action?
As is pointed out in Bland on The Law of Easements and Profits à Prendre at p.56, to constitute a disturbance with an easement of way there must be a real substantial interference with it.
In this case, the factual position is that there has been a total obstruction of the plaintiffs’ use of the car park delivery doors since February 1998 and this obstruction is permanent. Between February, 1998 and September, 2003 there was no access at all over the car parking area to any part of the rear of Corbettcourt Shopping Mall. Since September, 2003 there is a limited access from Barrack Lane via the passage which was formerly part of the car parking area, past the coffee shop through the porch entrance. I accept the evidence of the first plaintiff that this route is totally unsuitable and impractical for effecting deliveries to and from the plaintiffs’ retail units and that it is not used by them. Indeed, Mr. Corbett’s evidence was that this route is not used frequently and that deliveries are either brought in through the main entrance at Williamsgate Street or via Ballalley Lane. On the evidence I find that there has been a real and substantial interference with the express and implied rights acquired by the plaintiffs under the leases. It is no answer for the defendants to say that the other routes (the main entrance at Williamsgate Street, Ballalley Lane and the Eyre Square Shopping Centre loading bay) are still available to the plaintiffs. The plaintiffs have been deprived, not only of the most convenient route, but of the only suitable route for efficient bulk deliveries of the merchandise retailed in Unit No. 12 in contravention of their rights.
Conclusion
Accordingly, I conclude that the plaintiffs have established liability on the part of the defendants.
William Bennett Construction Ltd. v. Greene & Anor
[2004] IESC 15
JUDGMENT delivered the 25th day of February 2004, by Keane C.J. [Nem Diss]
The defendants were the owners in the year 2000 of a plot of land at Clonroche, Co. Wexford. They had originally intended to develop the land for housing and to that end the first named defendant applied for, and was granted, an outline planning permission for the erection of eighteen dwelling houses. The decision to grant outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site.
Because of family circumstances, the defendants decided not to proceed with the development and to sell the site with the benefit of the outline permission. They also decided, however, to retain part of the site as shown on the site layout plan. The drain for the disposal of the sewage was shown on the site layout plan as crossing that land. That is what has given rise to the present litigation.
Mr. William Bennett (the proprietor of the plaintiff / appellant company and hereafter referred to as “the plaintiff”) was interested in acquiring the site being offered for sale by the defendants. He met the first named defendant towards the end of January 2000 and it is not in dispute that they agreed at that meeting on a purchase price of £250,000.00. It is also accepted by the parties that, at that meeting, the plaintiff made it clear that he would not be interested in proceeding with the purchase unless what is usually referred to as a “full planning permission” was available in respect of the proposed housing development. The draft contract for sale of the land was sent by the defendants’ solicitors to the plaintiff’s solicitors on the 20th April, 2000 and returned to them signed on behalf of the plaintiff on the 28th April. Condition 4 of the special conditions provided that
“The property is subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property, the closing date shall be one month from the grant of planning permission. In the event that the said planning permission has not issued within six months from the date hereof either party shall be entitled to rescind this contract and the purchaser will be refunded his deposit in full without interest costs or compensation.”
Since there was already available an outline permission for the erection of eighteen dwelling houses on the lands being sold, it is accepted by both parties that the reference to the purchaser obtaining “planning permission” was either to an approval obtained by him consequent on the outline permission or a “full” permission (i.e. not an outline permission).
Under the heading “Documents Schedule”, two documents were referred to in the contract, i.e. “folio 11353 F”, in which the lands being sold were registered, and “Outline planning permission register reference 991372”. Paragraph 6 of the General Conditions provided that
“The documents specified in the documents schedule or copies thereof have been available for inspection by the purchaser or his solicitor prior to the sale. Where any of the subject property is stated in the particulars or in the special conditions to be held under a lease or to be subject to any covenants, conditions, rights, liabilities or restrictions, and the lease or other document containing the same is specified in the documents schedule, the purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased with full knowledge of the contents thereof, notwithstanding any partial statement of such contents in the particulars or conditions.”
On the 8th June, 2000, the contract was executed by the defendants. On the 17th November, 2000 the planning authority issued an approval for the development of the eighteen houses.
The sale was completed by the execution of a transfer of the land and the payment of the purchase money on the 31st January, 2001. Before that happened, however, the question as to whether the plaintiff was required to pay interest on the balance of the purchase money outstanding was discussed directly between the plaintiff and the first named defendant. The plaintiff, having been informed through his solicitors that the first named defendant was requiring the payment of the interest, there was a telephone conversation between them on the 1st or 2nd February at which the first named defendant confirmed to the plaintiff that he would have to pay the interest and, in response to a query from the plaintiff, also made it clear that he was not prepared to allow the drain for the disposal of the sewage to cross the land retained by him as shown on the site layout plan lodged for the purpose of obtaining the outline permission.
The defendants having maintained their attitude that they were not prepared to allow the plaintiff to lay a drain for the disposal of the sewage across the land retained by them, the present proceedings were issued. In the statement of claim, the plaintiff claimed inter alia an injunction restraining the defendants from preventing the plaintiff’s exercise of what was described as the “way leave” set out on the site layout plan. A defence having been delivered on behalf of the defendants denying that the plaintiff was entitled to any of the relief claimed, the action came on for hearing before O’Higgins J. In the course of evidence, the plaintiff said that, at the meeting in January 2000, where he and the first named defendant had agreed on the sale of the land for the specified sum and that it should be subject to full planning permission, the first named defendant showed him the site layout plan. He said that he indicated to the defendant where the plan showed the entrance to the site to be and where the sewage went out and the first named defendant agreed that that was what the plan showed. The first named defendant in his evidence denied that there was any discussion as to the sewage at that meeting.
There was also produced in evidence a record of an attendance by the solicitor for the first named defendant on his client dated the 8th March, 2000 which records:
“[The first named defendant] said in the outline permission the sewer pipe comes through the supermarket property onto the main street.
“He said that he wants the builder to take the sewage through the opening / entrance.”
The plaintiff in his evidence said that the cost of bringing the sewage out through the main entrance would be in excess of £120,000.00 and that he would not have bought the site if he had known that the defendants would not permit him to dispose of the sewage in the manner indicated on the site layout plan.
The trial judge, in his judgment, said that he preferred the evidence of the first named defendant to that of the plaintiff as to what had transpired at the meeting towards the end of January 2000 where the price for the land was agreed and that he was, accordingly, satisfied that there was no discussion as to the sewage at that meeting. He rejected the submission advanced on behalf of the plaintiff that the inclusion of the planning permission as one of the scheduled documents in the contract for sale meant that the contract was subject to an implied condition that the defendants would grant the plaintiff the way leave in question across the retained land and the further submission that the defendants in refusing to grant such a way leave were derogating from their grant of the land to the plaintiff, thereby entitling the plaintiff to the relief sought. From that judgment, the plaintiff has now appealed to this court.
At the outset, Mr. George Brady S.C. on behalf of the plaintiff accepted that this court could not disturb the finding of the trial judge as to the credibility respectively of the plaintiff and the first named defendant. He submitted, however, that the trial judge had erred in law in concluding that the actions of the defendants in declining to allow the plaintiff to dispose of the sewage in the manner indicated in the site layout plan had not derogated from their grant of the land. He said that where, as here, the land had been sold for a specific purpose known to both parties, i.e. the development of the land as shown on the site layout plan on the basis of which the outline permission had been granted, and the uncontradicted evidence established that it would be prohibitively expensive for the plaintiff to develop the land in any other way so far as the disposal of the sewage was concerned, the conduct of the defendants in refusing to allow the development proceed in that manner constituted a derogation from the grant of the land. He cited in support of this submission the decision of Barron J., sitting as a High Court judge, in Connell –v- O’Malley (unreported; judgment delivered 28th July, 1983). He also relied on the provisions of s. 6 of the Conveyancing Act, 1881.
Alternatively, Mr. Brady submitted that, in the circumstances of this case the doctrine of promissory estoppel applied and that the defendants, having represented to the plaintiff that the line of the sewage disposal would cross the land retained by them, should not be permitted to act in a manner inconsistent with that representation where it had been acted on, to his detriment, by the plaintiff, citing Daly –v- Minister for the Marine & Ors [2001] 3 IR 513.
On behalf of the defendants, Mr. Patrick Keane S.C. submitted that the defendants had agreed to no more than the transfer of the land described in the contract for sale for the specified price and did not agree to grant any way leave over the retained land. Since there was no way leave in existence at the date of the contract and the defendants had not in any way obstructed the exercise by the plaintiff of an existing easement or quasi-easement, there was no room for the application of the principle that a grantor should not be allowed to derogate from his grant. As to the claim based on promissory estoppel, Mr. Keane submitted that, having regard in particular to the finding of the trial judge as to the conversations between the plaintiff and the first named defendant and the undisputed evidence that the defendants had never promised that they would allow the plaintiff to lay a pipe across the retained land for the purpose of disposing of the sewage, that doctrine had no application.
As to the first submission advanced by Mr. Brady, there is little modern Irish authority on the principle that a grantor cannot derogate from his grant, although the law is helpfully reviewed by Barron J. in Connell –v- O’Malley., as yet unreported but noted at (1984) ILRM 563. Since Mr. Brady strongly relied on that judgment, the facts of the case should first be summarised.
The plaintiff had purchased a site at Navan from the defendant which had the benefit of outline planning permission for the erection of five dwelling houses. The site was formerly part of the defendant’s residential farm and was approached by a private laneway over his land. The plaintiff believed that this laneway would be taken in charge by the Meath County Council. There was protracted litigation between the parties and the defendant erected a gate which could close off the laneway, as a result of which the local authority refused to take it in charge. The plaintiff claimed an injunction restraining the defendant from maintaining any obstruction on the laneway on the ground that he was acting in derogation of his grant.
Barron J. found that, while the site could still be used for the erection of five dwelling houses, they would be very difficult to sell unless the laneway was taken in charge. Since the defendant knew that the site was being purchased for a housing development, he concluded that the only reasonable inference from the defendant’s conduct was that he was deliberately obstructing the laneway so as to ensure that the site would not be developed. In these circumstances, he held that the defendant’s conduct amounted to an attempt to derogate from his grant which should be restrained by the court.
Barron J. stated the law to be as follows:
“The doctrine of derogation from grant imposes implied obligations which arise when the owner of land disposes of part of it while retaining the balance. The most usual application is in relation to easements, but it is not limited to the creation of easements by implied grant. The obligations which are implied depend upon the particular nature of the transaction and arise from the presumed intention of the parties.”
Having referred to a contention on behalf of the defendant that the restriction which the plaintiff was seeking was one which he could have ensured was reserved to him by the contract of sale, Barron J. said, in a passage which was strongly relied on by Mr. Brady:
“When there are quasi-easements, then, on a sale of part of the land, the grantee does not have to contract specifically to retain the benefit of such rights for the benefit of the land granted, because they are implied. But, if the grantor wishes to retain quasi-easements for the benefit of the land retained, he must specifically reserve them. It is correct that the purchaser must protect himself specifically when the grantor could not anticipate that he would require such protection, but that is not the case here. I reject this defence.”
That, however, was said by the learned judge in a case where a defined right of way over land retained by the grantor giving access to the land transferred to the grantee was in existence at the date of the grant and its obstruction by the grantor rendered the land granted significantly less capable of development.
That is patently not the case here. At the time of the sale, there was not in existence an easement in the nature of a way leave which, when part of the land was sold, remained in existence as a quasi-easement for the benefit of the lands sold.
The law was thus stated by Thesiger L.J. in the leading case of Wheeldon –v- Burrows [1878] 12 Ch.D 31:
“We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which had been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.” [Emphasis added]
That was stated by Ross J. in the Irish case of Head –v- Meara [1912] 1 IR 262 to be a specific application of the principle that a man must not derogate from his own grant.
In a modern Irish textbook on the subject, The Law of Easements and Profits a Prendre by Peter Bland, the law is stated clearly and succinctly as follows at para 1206
“For the quasi-easement (or accommodation) to be converted into an easement on the severance of the quasi-dominant and quasi-servient tenements, the accommodation must be capable of existing as an easement and it must have been used at the time of the grant by the grantor for the benefit of the property granted over the property retained.”
The defendants in this case had never at any stage used any part of their land for the disposal of sewage by means of a pipe connecting with the main sewers of the local authority. They did no more than indicate in the site layout plan lodged with the application for permission that that was how they would propose to dispose of the sewage, in the event of permission being granted for the development and the development proceeding. There was, accordingly, no easement in existence being used at the time of the grant by the grantor for the benefit of the property granted over the property retained and hence no room for the application of the doctrine that the grantor cannot derogate from his grant.
Section 6 of the Conveyancing Act, 1881, on which Mr. Brady also relied, provides that
“A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water courses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”
Professor J.C.W. Wylie, in the second edition of Irish Conveyancing Law, describes this as one of the so-called “word saving” provisions in the Act. He observes that, while the section is often invoked to establish in favour of the purchaser the existence of easements over land retained by the vendor, it does not enlarge the rights to which the purchaser is entitled under the contract for sale.
I am satisfied that this is a correct statement of the law and that, in the case of easements, such as way leaves, the effect of the section is to ensure that any such easements in existence and appertaining to the land at the time of the conveyance pass with the conveyance. Moreover, as was made clear by Lord Wilberforce in Sovmots Ltd. –v- Environment Secretary [1979] AC 144, the section can have no application to a quasi-easement such as is claimed in this case, the reason being that
“When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.”
No doubt, the existence of an outline permission could be described as one of the “advantages” appertaining to the land. But a purchaser of the land, such as the plaintiff in the present case, becomes entitled to the benefit of that permission, not by virtue of s. 6 of the 1881 Act, but because of the general principle enshrined in s. 28(5) of the Local Government (Planning and Development) Act, 1963, that a grant of permission to develop land inures for the benefit of the land and of all persons for the time being interested therein. I have no doubt that that is what Henchy J. was indicating in the case of Readymix (Eire) Ltd. –v- Dublin County Council & Anor (unreported; Supreme Court; judgments delivered July 30th, 1974) when he referred to a planning permission as “an appendage to the title”. The fact that it is not personal to the successful applicant for the permission and may be utilised by any person who subsequently acquires a legal interest in the property does not convert it into a document of title in any sense. That is put beyond doubt by s. 26(11) of the same Act which provides that
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It follows that the plaintiff in the present case, in implementing the planning permission, was in no different position so far as the disposal of the sewage was concerned than if it had been shown in the layout plan as crossing the land of a third party to whom the defendants had sold the land subsequent to the obtaining of the permission.
As to the alternative argument advanced by Mr. Brady, that the plaintiff was entitled to rely on the doctrine of promissory estoppel, the law on that topic was stated as follows by Griffin J. in the decision of this court in Doran –v- Thompson Ltd. [1978] IR 223:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance.”
That passage, which was also adopted by Fennelly J. speaking for the court in Daly –v- Minister for the Marine [2001] 3 IR 513, is undoubtedly an authoritative statement of the law on promissory estoppel. It is, however, of no assistance to the plaintiff in the present case, because he has failed to establish the existence of “a clear and unambiguous promise or assurance” by the defendants to grant him a way leave over the retained land. On the contrary, even on his own account, which was not accepted by the trial judge, there was no such promise or assurance: the first named defendant did no more than agree that the plan showed the sewage as being disposed of by a pipe crossing the land to be retained by the defendants. Both the attendance of the defendants’ solicitor recording the first named defendant’s insistence that the sewage should not be disposed of in that manner and the subsequent seeking by the plaintiff of an assurance from the first named defendant that he would be permitted so to dispose of the sewage are entirely inconsistent with any such unambiguous promise or assurance having been given by the defendants to the plaintiff before or at the time the contract was executed by the parties.
I would dismiss the appeal and affirm the order of the High Court.
Honiball v. McGrath
[2002] IESC 26
JUDGMENT delivered the 24th day of April, 2002 by FENNELLY J. [Nem Diss.]
1. Clonmannon Retirement Village has had a chequered history. It is to be hoped that this appeal will see the end of a prolonged and bitter saga of litigation. Thankfully, the issues in dispute have been narrowed to two essentially technical legal questions.
2. The Village was established in the 1980’s on about twenty four acres of land surrounding an eighteenth century residence, Clonmannon House in County Wicklow. It was to deliver a comprehensive scheme of residence and care for retired people. Bungalows were leased to residents and care contracts made providing for the care and maintenance of the Village and facilities for the residents. After a promising start, it failed, regrettably, to live up to expectations. In the early 1990’s it ran into financial difficulties. The provision of services ceased. Residents refused to pay charges. From 1993 to 1996, all provision of services ceased and Clonmannon House was closed up. These matters were the subject of a statutory investigation by an officer appointed by the Minister for Enterprise and Employment. The Minister petitioned in October 1995 for the winding up of the companies then responsible for running the scheme. A receiver had already been appointed over the lands in 1994. The first two named respondents (“the McGraths”) purchased the enterprise in 1996. The third-named respondent was their nominee. This was the third set of owners.
3. The subsequent attempt by the respondents to extricate the scheme from its difficulties became the subject of bitter recriminations between the majority of the residents, who supported the respondents, and a minority, represented by the appellants, who insisted on strict adherence to what they claimed to have been the terms of the original scheme. As was inevitable, some of the original protagonists are now deceased and certain of the appellants are the legal representatives of deceased residents.
4. In the years prior to 1993, an upper floor of Clonmannon House had been used to provide nursing home services to some of the residents. The plaintiffs claimed that this was part of the scheme and they had a right to have this continued or at least that they should have access to the entire of Clonmannon House for this and other purposes. When the McGraths gave notice that they intended to reside with their family in the House in 1996, some residents, in particular the first-named appellant objected. As the appellants state in their written submissions, this was the fundamental part of the appellants’ case and it precipitated the present litigation which was heard by Kearns J in the High Court over a period of seven days.
5. The learned trial judge has detailed at some length the steps which the McGraths took, following their purchase in 1996, to ascertain by means of consultations and questionnaires the wishes of the residents. This exercise demonstrated that the overwhelming majority of the residents supported the McGraths’ efforts to formulate an altered and viable basis for the care contract. Twenty five of them (in some cases their executors) swore affidavits in High Court proceedings to demonstrate their support. The learned trial judge expressly found that the respondents had discharged the onus of showing that a bona fide opinion had been formed that it was in the best interests of the residents to make the variations. The McGraths had properly considered the amount of the service charge, doing so on the basis of a calculation with their accountant. In the event a varied contract was put in place. This included the provision of a “country club” in the basement of Clonmannon House consisting of a dining room, bar, reading room, launderette, office, store, toilet and library. The contract also provided for reinstatement of the necessary arrangements for the maintenance of the Village as a whole.
6. All these matters have been thoroughly ventilated, investigated and litigated.
7. It is necessary, nonetheless, to describe the central elements in the original scheme but only insofar as is relevant to the points remaining to be decided.
8. Two legal documents contain the essential elements of the original scheme. Firstly, Rayhill Property Company Limited (“Rayhill”) granted a lease of each bungalow to some forty six lessees. Secondly, Home Affairs Limited (“Home Affairs”) entered into a “care contract” with each of the lessees. However, it was also necessary for Home Affairs to join in each lease, because it was the holder of an intermediate registered leasehold interest in the common areas of land and of certain parts of the structure of Clonmannon House.
9. The respondents can be treated, for the purposes of this appeal, and without detailing the relevant conveyancing transactions, as the successors of these companies. They purchased the lands and house at Clonmannon from the receiver, with the co-operation of the liquidator, in 1996. They accepted by way of compromise of an earlier appeal to this Court that the third-named respondent would take an assignment of the care contracts as successor of Home Affairs.
10. The title to the estate was divided to give effect to the various transactions. Rayhill from 1989 to 1991 (and its predecessor in title, Retirement International (Ireland) Limited from 1985 to 1987) granted the leases of the bungalows. Home Affairs (and in the earlier period its predecessor, Retirement Ireland Limited) entered into the individual care contracts. It is only leases granted in the latter of these periods that are relevant to this appeal. In addition, Retirement International (Ireland) Limited, on 10th September 1984, granted a lease for a term of twenty five years from 1st August 1984 to Retirement Ireland Limited of all the common areas and of certain parts not only of the leased bungalows but also, which is relevant to the issues on the appeal, of Clonmannon House. Those parts were described as follows:
“firstly ALL THAT AND THOSE the Common Areas the sites of the staircase landings passages halls roofs external walls and all other communal parts of the Buildings and secondly ALL THAT AND THOSE the main structural parts of the Buildings including the external walls (but not the interior faces of such external walls as bound the Bungalows nor the glass of the windows of the Bungalow) the roofs and foundations of the buildings and all cisterns tanks sewers drains pipes wires central heating boiler ducts and conduits not solely used for the purpose of one Bungalow together with for [Retirement Ireland Limited] it’s Lessees Sublessees Tenants, Subtenants, Invitees , Licensees and Assigns the right to pass and repass at all times and for all purposes with or without vehicles over the lands coloured yellow on the map hereto …”
11. Home Affairs, therefore, shared, at the relevant time, an interest in the premises of Clonmannon House with Rayhill.
12. All the titles are registered. Thus the lessors’ interest in the bungalow leases was held at the times relevant to these proceedings by the McGraths, subject to leases registered as burdens on their freehold folio, Number 17590 County Wicklow, and in turn registered on leasehold folios. Similarly, the title of Home Affairs was registered on a separate leasehold folio 3265L as well as a burden on the said folio 17590. However, a matter upon which much reliance was placed, the rights claimed by the appellants to be enjoyed over Clonmannon House, were not registered as a burden on the leasehold folio (3265L) of Home Affairs.
THE LEASE
13. It is now appropriate to turn to the terms of the bungalow leases.
14. Recital B.(1) to each lease stated:
“The Lessor is completing the development of the Village as a Retirement Village for private occupation for persons aged fifty years and upwards and……[has] erected or intend[s] erecting 60 bungalows in the Village and have restored Clonmannon House which is intended to be used as a part of the Retirement Village for the purposes hereinafter and in the care contract specified …”
15. Each lease referred to in these proceedings was granted for a term of forty five years or the life of the lessee whichever should be shorter and in consideration of the payment of a sum of £42,000 together with a small annual rent payable to Rayhill and also in consideration of the lessee entering into the care contract with Home Affairs, which also joined for the purpose of certain “rights and easements…” in consideration of an additional rent of £1 per annum payable to it, Home Affairs granted and demised to each lessee the rights and easements specified in the Second Part of the First Schedule. These are as follows:
“(a) Full right of way, at all times by day and by night, either on foot or with mechanically propelled vehicles of all kinds, for all purposes connected with the use and enjoyment of the bungalow as a retirement bungalow forming part of a retirement village, in common with all other persons entitled to a like right, to go, pass and repass, over and along the roadway and those parts of the Common Areas as are laid out as driveways or pathways to and from the bungalow, to and from the public highway, but limited to the use of the bungalow as a private residence.
(b) The right to park a motor car or motor cycle or bicycle, used for private purposes only in such car parking spaces as may be allocated to the bungalow hereby demised by the Care Company from time to time.
(c) The free passage and running of water, soil, gas, air, telephone, television and telecommunications of all kinds, oil and heating fuels and other services from and to the bungalow hereby demised through all drains, sewers, pipes, conduits, cables and water courses now or at anytime within the period of 21 years from the date hereof to be in, under, or passing through the Common Areas, or any part thereof.
(d) The free passage and running of water from the roof of the bungalow through the gutters and down pipes on the outside of the bungalow of any adjoining bungalow to the drains and sewers forming part of the Common Areas.
(e) The right, in common with the Lessor and the Care Company, their and each of their servants, agents, invitees and licensees, and the owners and occupiers of the other bungalows in the Village to use as a pleasure garden those portions of the Common Areas as are laid out as pleasure gardens.
(f) The right of lateral support for the bungalow hereby demised from any adjoining bungalow.”
16. Furthermore, Home Affairs entered into the covenants with each lessee which are set out in the Fourth Schedule:
“1. To keep those parts of the Common Areas as are laid out as roadways and pathways in good order and condition, and properly tarmacadamed and whensoever necessary to retarmacadam same.
2. To keep the main structural parts of Clonmannon House, including the exterior walls and the roof thereof in good order, repair and condition.
3. Once in every third year, to paint all outside wood and stucco cement and other like exterior parts of Clonmannon House with two coats of good oil and white lead paint in a proper and workmanlike manner in the same colour as that in which the said work is painted, or in some other colour to be first approved of in writing by the Lessor.
4. To repair and keep the hallways, staircases and landings forming portion of Clonmannon House in good order repair and condition, both substantial and decorative.
5. To keep the fixtures and fittings and machinery in Clonmannon House, and any fixtures and fittings common to two or more bungalows in the Village in good order, repair and condition, both substantial and decorative and to replace the same when so ever necessary.
6. To provide bins for the disposal of domestic rubbish and to make suitable arrangements for the disposal of such domestic rubbish.
7. To keep those parts of the Common Area as are laid out as pleasure gardens and gardens neat and tidy and properly mown and tended.
8. To make regulations from time to time for the user of the Common Areas, the car parking spaces and all fixtures, fittings, machinery and equipment in the buildings.”
17. In addition, each lease contains a number of references to the Care contract. Recital B. (1) cited above declares the intention that the bungalows are to be used as part of the Retirement Village in a manner explicitly linked with the care contract. Each lessee is not only bound to enter into the care contract, but continuance of the lease is made conditional upon his continuing to observe its terms. Home Affairs, on the other hand, merely covenants to perform and observe the covenants on its part “contained in the lease.” Specifically, Home Affairs enters a covenant for quiet enjoyment in terms that the lessee “may peaceably hold and enjoy the easements …demised to him by [Home Affairs] without any lawful interruption or disturbance from or by…” [Home Affairs] or anyone on its behalf.
THE CARE CONTRACT
18. The care contract was, of course, a fundamental part of the original scheme. It was designed to enable elderly people to enjoy the independence of living in their own homes, the comfort of having some daily needs catered for, the society of others and the security of certain minimum health care. Naturally, the care contract provided for routine care and maintenance of the estate. The first schedule to the care contract set out a list of the “care facilities” which Home Affairs then undertook contractually to provide. The cost of these facilities in about 1990 was about £5,500 per annum. Some residents became unwilling to pay so much. That issue is part of the history of the deterioration of the Village and its not necessary now to review it. In the High Court, the appellants claimed that there was a right under the care contract to have a nursing home facility. This was linked with the question of a right of access to Clonmannon House. The only relevant provisions of the care contract are the following items from the First Schedule:
“11. The provision of a qualified nurse on call for minor medical complaints.
12. The provision/maintenance of an infirmary for the treatment of minor medical complaints.”
19. Kearns J rejected the claim that there was a right to have a nursing home facility as completely unfounded. This is no longer a live issue. What is of most relevance is the facility contained in the care contract to vary the terms of the care provided as contained in two clauses:
“(vii) If the Care Company shall be of the opinion that in the interests of the Village as a whole care facilities not hereby agreed to be provided by the Care Company should in future be provided then the Care Company shall give notice in writing to all the Lessees in the Village of such intention and unless not less that 75% of the Lessees in the Village object in writing to the Care Company addressed to its registered office within fourteen days of the date of posting by the Care Company of its notice of intention to provide such additional care facilities then the First Schedule hereto shall be deemed to have been amended to include the provisions of such new care facilities as and from the date when the Care Company shall in its discretion commence such additional care facilities.
(viii) If the Care Company shall of the opinion that in the interests of the Village as a whole it is desirable that care facilities hitherto provided or herein agreed to be provided by the Care Company should no longer be provided then the Care Company shall give notice in writing to all the Lessees in the Village of such intention and unless not less than 75% of the Lessees in the Village object in writing to the Care Company addressed to its registered office within fourteen days of the date of posting by the Care Company of its notice of intention to withdraw such care facilities then the First Schedule hereto shall be deemed to have been amended to delete the provision of such hitherto provided care facilities as and from the date when the Care Company shall in its discretion cease to provide such care facilities.”
20. The first of these provisions allowed for the provision of new or additional facilities, the second for the elimination of services hitherto provided. Apparently, it would suffice if twenty five per cent of the residents supported such a proposed change. In each case, however, Home Affairs had to be “of the opinion that [the change was] in the interests of the village as a whole.” It was held by Kearns J and is not now disputed that these clauses permitted variation of the care contract. The validity of the opinion formed by the McGraths, in order to effect the variations, nonetheless remains at issue.
THE BROCHURES
21. As already indicated, the appellants have at all times maintained that they are entitled to insist on the level of services to be provided on the lines of the original care contract. In particular, they maintained that these had to include a nursing home facility in Clonmannon House. For this reason, therefore, they have claimed and continue to claim a general right of access to Clonmannon House. Consequently, the McGraths did not have the right to live in the house. Furthermore, they contended that such residence was in contravention of planning legislation and, in particular, the terms of a planning permission which had been granted so that nursing home facilities could be provided. In support of their claim that the respondents were bound to provide a retirement complex on the lines for which they contended, the appellants placed reliance on some sales brochures produced at the time of the marketing of the Village complex. Kearns J indulged in a little hyperbole when he described one of these brochures as promising “a version of heaven on earth to purchasers.” They demonstrated “an impressive range of facilities ….. under a picture of smiling staff outside Clonmannon House.” More directly to the point, the following paragraphs seemed, in the view of the learned trial judge, clearly to imply that the residents would have access to and use of the facilities of Clonmannon House:
“Built in 1780, the house – or Clubhouse, as it is known to the residents – is one of the finest examples of its period, no expense having been spared on its upkeep over the years.
The house is the centre of all village activity. Incorporating all the traditional features of gracious living, it is an extension of your own home, a place where you can relax, entertain friends, or participate in a wide variety of social and recreational pursuits.
The house has a small infirmary, where nursing staff are on call at all times, and there is also inter-denominational oratory for religious services.
The Library, overlooking the lovely Wicklow mountains, is ideal for moments of quiet contemplation in front of a winter log fire. The large and beautifully furnished Drawing Room is a place to enjoy coffee or an after-lunch liqueur. Another feature of the Clubhouse is the Billiards Room, always available to residents and their guests. Overnight accommodation is available for the use of visitors.
Everything at Clonmannon Village is designed for your convenience, contentment and peace of mind.”
22. It is important to note that the McGraths at no time saw this brochure before the purchase.
THE HIGH COURT PROCEEDINGS
23. The essence of the case made by the appellants in the High Court was:
24. A) the McGraths did not have the right to reside in Clonmannon House, because, inter alia, the planning permission precluded it;
25. B) the respondents were bound to provide a nursing home;
26. C) the appellants had a right to enjoy general access to Clonmannon House;
27. D) the respondents had not validly varied the care contract.
28. The learned trial judge rejected all these claims. As already stated, he found the contention that there was a right to a nursing home to be completely without foundation in fact. There was nothing in the planning permission which prevented the McGrath residing in Clonmannon House. He found that there was no defect in the variation of the care contract effected by the respondents. On the question of the right of access to Clonmannon House, he accepted the evidence of Mrs McGrath that she had not seen the brochure before purchasing the property and accepted the respondents submission that liability for any such representation as might be contained in such a brochure would not affect a purchaser for value without notice. In any event, nothing in the brochures prevented the respondent from availing of the machinery provided in the care contract for the variation of its terms. He also rejected the appellants’ contention that the rights claimed affected the land without registration by virtue of the provisions of section 72 (1)(j) of the Registration of Title Act, 1964, as being included in the expression:
“The rights of every person in actual occupation of the land or in receipt of the rents or profits thereof….”
29. The learned trial judge held that there was, in any event, no question of anybody being in possession at the time of the purchase. Clonmannon House had been closed for three years when the McGraths became interested. Nor were the rights in the care contract rights in land. They were mere contractual rights which could be varied.
THE APPEAL
30. The issues have been further narrowed down on this appeal. No further reliance is placed on the claimed absence of planning permission for the residence by the McGraths in Clonmannon House. The appellants make essentially two arguments.
31. It is submitted that the right of access to Clonmannon House is granted by necessary implication having regard to the terms of the lease. Clonmannon House was the central core of the entire scheme. While the brochure was not relied upon as varying the contract or adding to the lease, the lease and the care contract were two documents which together showed the intention of the parties. The care contract should be read as if it were appended to the lease. The recitals to the lease followed closely the terms of the brochure. There are numerous references to the care contract in the lease. It was not possible to make sense of the lease, and in particular the covenants by Home Affairs as set out in the Fourth Schedule (as quoted above) to maintain and repair Clonmannon House if the lessee did not have access to it. The right of access could also be considered as a license coupled with an interest. The license is contained in clause 15 of the First Schedule to the care contract:
“The provision/maintenance of the Club House and in particular the bar, billiard room, laundry room, hair salon/barber/beauty salon, grocery/newsagent, cinema, lounge, dining room, pharmacy and medical centre.”
32. The interest coupled with this is to be found in the lease.
33. The appellants’ continued challenge to the variation of the care contract is now based essentially on the narrow contention that the McGraths could not validly have formed a bona fide opinion, as required by the care contract, that the variation was in the interests of the Village as a whole, because they were affected in this by their own wish to reside in Clonmannon House.
34. I will refer only briefly to the submissions on these two issues. As to the contents of the brochure, they rely on the proposition that extrinsic evidence cannot be used to contradict, add to or alter the terms of a deed.. Insofar as the brochure is replicated in the terms of the care contract, the latter was expressly made subject to the possibility of variation. Representations made by Rayhill cannot affect the respondents as purchasers for value without notice. Furthermore, neither the care contracts nor the brochures nor any rights claimed by virtue of them was registered as a burden on either the freehold folio of the McGraths or on the leasehold folio of Home Affairs. The separation of the lease and the care contract was a clear and deliberate part of the scheme. The lease did not confer any rights of access to Clonmannon House on the lessees of the bungalows.
35. With regard to the variation, the respondents point to the evidence of the respondents, and in particular of Mrs Jane McGrath which was accepted by the learned trial judge. The judge had asked that she give evidence first of the circumstances of the variation. She had said that she would have had no problem with the reviving of the old care contracts. It was clear, however, that there were serious cost implications. In fact, when consulted, a very large majority of the residents (in many cases, it was their legal personal representatives) supported a variation to reduce the level of services and thus their cost.
CONCLUSION
36. I will deal first with the issue of the right of access. I have set out all the relevant terms of the lease above.
37. The scheme for the Retirement Village was effected by two distinct documents, each with its separate purpose. The lease conferred a leasehold interest on each resident in respect of his or her own bungalow. It was not, of course, restricted to the bungalow. The lease was part of the scheme for the Retirement Village. Consequently, the lessor entered into a number of covenants relevant to the upkeep of the estate generally. Since Home Affairs was the registered owner (by means of the intermediate lease) of the common areas of the estate, it joined for the purpose of granting a number of easements and similar rights over some common areas and imposing covenants on Home Affairs. These are all set out in the Second Part of the First Schedule and in the Fourth Schedule, which I have quoted above. Nowhere does the document purport to grant any right of access to Clonmannon House, nor do the appellants claim that it does so expressly.
38. This leads to the first point, the reliance placed by the appellants on the contents of the brochure. The respondents are clearly correct in their submission that the terms of the brochure cannot be the source of any such rights. It is trite law that extrinsic evidence cannot be relied upon to contradict, add to or vary the terms of a deed. (Norton on Deeds, 2nd ed. p 135). The lease sets out a comprehensive list of the rights and interests it grants and the obligations it imposes. It does not purport to incorporate the terms of the brochure. These are in the nature of advertising promotion. They do not confer any rights unless they are incorporated in the lease. It is not necessary, therefore, to apply the additional rule, though it would also clearly apply, namely that a representation such as that contained in the brochure could not bind a purchaser for value without notice of the property.
39. I also reject the submission that the lease conferred on each lessee an implied right of access to Clonmannon House. Such an implication would have to follow necessarily and obviously from the terms of the deed. It is said that the covenants entered into by Home Affairs make no sense if there is no right of access. In one sense, that is so. A party does not normally undertake an obligation to another person to repair a property if that other has no interest in having that repair carried out. However, the implication of the grant of a property right would require more. It would have to be demonstrated that the term effecting such a grant would as a matter of compelling necessity have to be implied to give what is usually called business efficacy to the terms of what is expressly agreed. If, for example, the deed, as distinct from the care contract had contained the obligation to provide services at Clonmannon House, it would have been impossible for the beneficiary to enjoy them without a corresponding right to enter the house. Home Affairs can perfectly well perform its repair obligations at Clonmannon House without conferring any right of access on the bungalow lessees. Such a right would have to be considered by reference to the care contract. To the extent that it provides for services to be rendered at Clonmannon House, the law will imply a right of access if that is clearly necessary in order to receive the services. It does not follow, however, that a proprietary right has to be granted. For essentially similar reasons, I reject the contention that there is here involved a license coupled with an interest. In truth the appellants’ argument begs the question. Sometimes a right in land cannot be effectively enjoyed unless accompanied by the grant of a license to enter. (see Wylie, Irish Land Law 2nd ed. par 20.04.) The appellants cannot point to any such antecedent interest in land. Rather their case is the converse, namely that the interest in land is required if they are to enjoy the benefit they claim to have been conferred by the care contract.
40. For these reasons, I would reject the appellants’ contention that they have a proprietary interest in Clonmannon House and it is unnecessary to consider the points concerning the Registration of Title Acts.
41. I would also reject the argument against the validity of the variation of the care contract. The appellants make a point which is more usually encountered in judicial review proceedings, where a decision of a public-law character is being challenged. The care contract was a private contract made between the parties to a commercial transaction. The company or persons responsible for the running of the Retirement Village will of necessity have an interest in the matter. Furthermore, the learned trial judge has made findings of fact, more than sufficiently supported by the evidence. The McGraths engaged in a careful and well supported exercise to ascertain the genuine wishes of the residents. The learned trial judge has found that they discharged the burden of proof of showing that the variation was in the interests of the Village as a whole. Essentially, the appellants’ point is a technical one. They have to accept that the contract can be varied; they cannot dispute the findings of fact made by the learned trial judge. They say that the McGraths had an interest in the outcome and could not form a fair and bona fide opinion, because they could not behave objectively. They were the persons bound under the contract to form any such opinion. The finding of the High Court means that they formed the opinion bona fide. To my mind that disposes of this ground of appeal.
42. Accordingly, I would dismiss the appeal and affirm the order of the High Court.