Dealings & Disputes
Case Partition Commonage
Glennamaddoo Common
[1992] IR 297
and Bunnahowna, County Mayo
Appeal Tribunal of the Irish Land Commission 4th March 1992
Appeal from the Lay Commissioners.
Carroll J.
4th March, 1992
This is the first time an application under s. 24 of the Land Act, 1939, for the compulsory sub-division of a commonage holding has come before the Appeal Tribunal of the Irish Land Commission. The lands are the lands of Glennamaddoo and Bunnahowna comprising 773.176 hectares. The commonage is divided into 64 shares. There are 42 shareholders. Thirty one are in favour of the subdivision, eight (possibly seven) are opposed to it and three are unaccounted for.
The commonage is on a mountain, part of a vast open area in the west of County Mayo near Achill Island. It is possible in that area to travel for 30 miles without seeing a fence. The land lies between 500 feet at the lowest point and 1,646 feet at the highest point. It takes two hours on foot to reach it from the main road. There is a lake at about 1,150-1,200 feet.
The application was made by the 31 owners under s. 24, sub-s. 3 of the Land Act, 1939. This provides:
“(3) Where one or more but not all of the owners in common of a holding to which this section applies apply to the Land Commission for a compulsory partition of such holding, the Land Commission, after serving the prescribed notices and making such investigations as they consider necessary, may, if they so think proper, prepare a scheme for the partition of such holding amongst the owners in common thereof and for the apportionment of the purchase annuity or other annual payment (if any) payable in respect thereof.
(4) Where the Land Commission prepares a scheme under the next preceding sub-section of this section, the following provisions shall have effect, that is to say:
(a) the Land Commission shall serve on every of the owners in common a notice stating the particulars of such scheme and the manner in which and the time within which objections thereto may be lodged;
(b) if no objections to such scheme are duly lodged, the Land Commission shall, on the expiration of the time for lodging such objections, by order confirm such scheme;
(c) if any objections to such scheme are duly lodged, such objections shall be heard and determined by the Lay Commissioners (other than the members of the Appeal Tribunal);
(d) an appeal shall lie to the Appeal Tribunal from every decision of the Lay Commissioners under the next preceding paragraph of this sub-section, and the decision of the Appeal Tribunal on such appeal shall be final save that an appeal shall lie on questions of law to the Supreme Court from such decision of the Appeal Tribunal;
(e) when all such objections have been finally determined, the Land Commission shall do whichever of the following things is appropriate having regard to the decisions on such objections, that is to say:
(i) by order confirm such scheme without modification, or
(ii) make in such scheme such modifications as are required by such decisions and by order confirm such scheme as so modified, or
(iii) cancel such scheme.
(5) An order of the Land Commission confirming a scheme under this section shall operate to make each of the owners in common of the holding to which such scheme relates the owner or tenant in severalty (subject to the terms and conditions stated in such scheme) of the portion of such holding allotted to him by such scheme and to apportion in such manner as is stated in such order or in such scheme the purchase annuity or other annual payment (if any) payable in respect of the whole of such holding.”
Section 24 of the Land Act, 1939, was extended and amended by s. 25 of the Land Act, 1950, s. 23 of the Land Act, 1953, and s. 41 of the Land Act, 1965, but the amendments are not relevant to this application.
The rules applicable to partition of land held in commonage are set out in Order IV of the Land Purchase Acts Rules, 1951. Under those rules an applicant (or his solicitor) under s. 24, sub-s. 3 of the Act of 1939 must sign an application form with a map showing the lands proposed to be partitionedand the names and addresses of all co-owners and state reasons why the consent of any co-owner has not been obtained (rule 1, form 131). The Land Commission must then serve notice of such filing, personally or by registered post, on all the co-owners other than the applicant (rule 2). When the scheme has been prepared a map of it shall be filed in the Land Commission and shall be open to inspection at any time the offices of the Land Commission are open for the transaction of business (rule 3). Notice giving particulars of the scheme and the time and manner for making objections shall be served personally or by registered post on all the co-owners (rule 4). Objections are to be lodged within one month of service of the notice of the proposed scheme. An objection should be in writing in the prescribed form (form 132) and should state the grounds of objection and be signed by the objector or his solicitor and filed in the Land Commission. In turn the Land Commission has to serve notice of such filing personally or by registered post on persons affected by it (rule 5). If there are objections there must be a hearing before the Lay Commissioners of which not less than 14 days notice must be given (rule 6).
The Land Commission inspector, Mr. O’Grady, having received the application in form 131 dated 20th May, 1987, sent out notices to all non-applicants on 24th November, 1987. He and Mr. Cannon, an ACOT adviser, held 4-5 meetings hoping for agreement, which was not reached. The map was prepared and was on display in Mulranny at Easter, 1988, as well as in the Ballina office for a month. Modifications were asked for and made. Those who objected got an offer to mark out their own shares but refused. A draw was held for all co-owners. A scheme was drawn up and copies sent to all co-owners on 28th April, 1988. Six objections were received, dated 1st May, 1988. Later Messrs. Garavan & O’Connor, solicitors, wrote on behalf of eight objectors (including the original six) setting out eight reasons in identical letters dated 19th May, 1988.
The matter came before the Lay Commissioners on 19th April, 1990, and their decision disallowing the objections has been appealed to the Appeal Tribunal.
By virtue of s. 14, sub-s. 2 (a) and S.I. No. 163 of 1950, the Appeal Tribunal consists of the Judicial Commissioner only.
The Act does not specify how the Appeal Tribunal is to decide an appeal from the Lay Commissioners. In a case where all the owners in common agree to partition, the Land Commission may under s. 24, sub-s. 2 “if they so think proper” authorise the partition. In the case of a compulsory partition the Land Commission “after . . . making such investigations as they consider necessary may if they so think proper prepare a scheme . . . ” In relation to a hearing before the Lay Commissioners where objections have been lodged, the sub-section provides that “such objections shall be heard and determined”. In relation to an appeal to the Appeal Tribunal the sub-section merely states that an appeal shall lie and that the decision of the Appeal Tribunal shall be final save on a point of law.
However, some light is shed by s. 24, sub-s. 2 (e). After the objections have been finally determined and the scheme has been neither confirmed nor cancelled, the Land Commission is given a power to make “such modifications as are required by such decisions and by order confirm such scheme as so modified”. It appears therefore that in hearing and determining objections, modifications can be made to a scheme.
The objectors raised the question of the impact on the environment by sub-dividing this commonage and the necessity for planning permission.
The Local Government (Planning and Development) Act, 1963, s. 4, sub-s. 1 provides:
“The following shall be exempted developments for the purposes of this Act:
(i) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949 . . .”
Section 1 of the Act of 1949 defines works as follows:
“‘works’ refers to the following or any of them:
(a) field drainage;
(b) land reclamation;
(c) the construction and improvement of watercourses;
(d) the removal of unnecessary fences;
(e) the construction of new fences and the improvement of existing ones;
(f) improvement of hill grazing;
(g) reclamation of estuarine marsh land and of callows;
(h) any operations ancillary to the foregoing.”
The Local Government (Planning and Development) Regulations, 1977, deals with exempted development in Part III thereof. Article 10 provides for what shall be exempted development and what limitations and conditions should apply. In the Third Schedule, class 5 of rural development describes the exempted development as:
“The erection of any wall or fence other than a fence of sheet metal or a wall or fence within or bounding any garden or other space in front of a dwellinghouse.”
This is subject to a condition that:
“The height of the wall or fence shall not exceed 2 metres above ground level.”
Mr. Seán Delaney, the planning officer for Mayo County Council, took the view that there was no need for planning permission but the objectors pointed out that art. 11, para. 1 of the Planning Regulations, 1977, provides that development to which art. 10 relates shall not be exempted development for the purpose of the Planning Acts
“(a) if the carrying out of such development would . . .
(xii) consist of the fencing or enclosure of any land habitually open to or used by the public during the ten years preceding such fencing or enclosure for recreational purposes or as means of access to any seashore, mountain, lakeshore, riverbank or other place of natural beauty or recreational utility.”
Areas of special scenic importance under the Mayo county development plan 1984 are delineated on the map relating thereto as being hatched with dots. Even though the map is not on a very large scale I am satisfied that the area of the commonage falls for the most part, if not entirely, within the designated area. It also appears that area of the commonage has been crossed freely by hill walkers and the like as well as by mountain sheep farmers for over 10 years so that the requirements of sub-para. (a) (xii) are met (if applicable).
The objectors also produced a copy order of An Bord Pleanála dated 31st May, 1989, in the matter of an application for the construction of roads in the townlands of Mullaghveal and Teeravane, County Kerry, in which An Bord Pleanála decided that the development was not exempted development.
There are also obligations on the State under a Council Directive dated 27th June, 1985, on the Assessment of the Effects of Certain Public and Private Projects on the Environment (85/337/EEC).
Article 2 provides that Member States shall adopt all measures necessary to ensure that before consent is given projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size, or location, are made subject to an assessment with regard to their effects.
Under art. 4, para. 2, projects of the classes listed in Annex 2 should be made subject to an assessment in accordance with arts. 5-10 where MemberStates consider that their characteristics so require.
Annex 2 sets out in paragraph 1 the agricultural projects subject to art. 4, para. 2. These are:
(a) projects for the restructuring of rural land holdings
(b) projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes
(c) water management projects for agriculture
(d) initial afforestation where this may lead to adverse ecological changes and land reclamation for the purpose of conversion to another type of land use.
(Sub-paragraphs (e) to (h) not relevant).
The European Communities (Environmental Impact Assessment) Regulations, 1989, were made for the purpose of giving effect to the Council Directive of 27th June, 1985 (No. 85/337/EEC). These regulations amend the Act of 1963 and the Act of 1976.
Further regulations were introduced by the Local Government (Planning and Development) Regulations, 1990. This requires certain planning applications to be accompanied by an environmental impact statement (Part II, art. 4, para. 1).
It can be seen therefore that the environmental and planning implications of the enclosure and sub-division of this commonage are by no means clear. There was a considerable body of evidence on the ecological impact of this proposed sub-division. Ownership in itself causes no ecological or environmental damage but the erection of fences and roads may do so. Partition into individual plots without the right to fence off one’s land from one’s neighbours is pointless. Therefore unless it were possible to erect fences and build internal roads for access, the partition would be without purpose.
The Appeal Tribunal is not the appropriate forum in which to decide planning matters. In my opinion the function of the Land Commission or of the Appeal Tribunal in this area is limited to ensuring that any order made by the Land Commission can be carried out without breach of the planning laws. If it cannot, it would be a nullity and should not be made in the first instance.
I consider that the planning and environmental aspects of this application can only be dealt with by the appropriate planning authority under the planning laws. However, if, after going through the planning procedure, planning permission were granted for the erection of fences and the building of roads or alternatively, if it were decided that planning permission is not necessary, that would dispose of this aspect of the objections to the sub-division.
But no order should be made by the Land Commission until the planning implications are resolved.
The next matter I turn to are the merits of the case for the applicants and the merits of the case for the objectors. When I refer to shareholders in this judgment I will give their individual reference number in the scheme to avoid confusion, as the same family names occur more than once.
The 31 applicants were represented in court and evidence was given by seven of them.
Since the introduction of the E.C. subsidy, the numbers of sheep has increased dramatically. Sheep are farmed for the headage payment rather than for wool or meat. In the west of Ireland an owner gets £40 per head up to a limit of 150. Mr. Michael Holmes (No. 2) who acted as spokesman for many of the applicants estimated that only 10-15 shareholders were using the commonage in one way or another. He said an additional 30 acres would be or immense benefit to the small farmers. According to him about 16 shareholders have farms of 10 acres or less and 8 or 9 have farms of between 10-15 acres. Farmers would not have to spend time searching for sheep over a huge area. Fencing would prevent trespass by other sheep which is now considerable. Since sheep have to be dosed every 5-6 weeks in winter, fencing would eliminate having to take them down off the mountain to do this. Land could be reclaimed and reseeded, and forestry was an option.
Two of the farmers who gave evidence wanted to put their own rams up with the sheep, which would not be possible without fencing. Another farmer had emigrated to England because of losses of 20% sustained on the mountain, but would try again with fencing. Another farmer reported losses of 10% every time he put sheep up on the mountain. One of the co-owners who had a riding centre wanted to put Connemara type ponies on her portion when allocated.
There were eight objectors, seven of whom were represented in court. One of them, Margaret Ryder (No. 37) was called but did not appear. There are three co-owners unaccounted for.
The disadvantages accruing to the objectors were set out in writing in the letter of 19th May, 1988, from Messrs. Garavan & O’Connor. They are as follows:
“1. There is a substantial number of tenants in this property who are quite satisfied to have the status quo relating to the commonage continue. Therefore it would be the first commonage in the country that the views of the owners of property in this fashion would not be taken into account.
2. At present a large number of people exercise their commonage rights.
3. In relation to the list furnished a number of those listed may or may not have the right to object in view of the fact that they are addressed as being in the care of third parties and they should be written to individually.
4. There are a number of commonage owners who have rights in adjoining commonages and graze their stock between the two areas. The proposed sub-division would prevent those owners of com- monage exercising their rights in this fashion.
5. The commonage is question is such a varied area that it will be virtually impossible to have any equality in a division.
6. For those farmers in the area who have invested heavily on their own behalf in sheep farming their livelihood would be seriously jeopardised, as the division of the commonage would make it useless for sheep grazing. Even by leaving an area to the top for sheep grazing, this will not satisfy the needs of the sheep farmers in question, as there would be little or no shelter or water.
7. There are a number of people who are pressing ahead for this commonage to be divided in spite of the well known views of objectors. This small but vocal group have already taken the law into their own hands and substantially fenced a large area of the commonage and this matter is already the subject of a Circuit Court case listed for the 24th May, as these people have interfered with the rights of my clients and all the other members of the commonage. In the view of the writer they know they were incorrect in doing this and are now using the Land Commission to rectify the wrong already done by them.
8. The proposed division of commonage, it seems, could be of great detriment to a proposed water scheme servicing the entire area in line with certain recommendations made for the development of the area.”
Of the written objections I consider that objections 1, 2, 3, 7 and 8 have no validity for the following reasons:
Objection (1)
By far the vast majority of shareholders in both numbers and shares want to have the commonage partitioned. Out of 42 named shareholders, 31 want partition and 8 (or possibly 7) do not. The objectors’ shares amount to 11/64 plus 6/960 or possibly 13/64 plus 13/960. In view of the overwhelming majority in favour of partition I do not consider this objection to be well grounded.
I need hardly add that the views of the objectors are being taken into account.
Objection (2)
The estimate of those owners using the commonage, as given in evidence, was between ten and fifteen. Many of those using the commonage either by grazing or letting, want partition. Therefore their user is not an argument which the objectors can rely on. Of the objectors, only Brendan McLoughlin (No. 30), Frank McHale (No. 43) and Kevin McMenamon (son of Patrick McMenamon) (Nos. 26 and 27) gave evidence. Frank Cusack who rented commonage and gave evidence is not a co-owner and cannot validly object. There was no evidence of user by Margaret Calvey (No. 22) or Thomas Chambers (No. 44). Mr. Holmes said that Patrick Joseph Keane (No. 40) did not use it and he thought Michael Murray (No. 6) did not use it. Also according to him Margaret Ryder (No. 37) is now in favour of partition. Therefore this does not appear to be a valid objection.
Objection (3)
The 31 signatories to form 131 are not candidates for objections. Of the three persons from whom no reply was received, none were served c/o another person. A question does arise as to the title of Michael McLoughlin (No. 15A) to be registered as owner of Folio 26657, registered owner Michael Loftus (Railway). This is a matter of title which will have to be cleared up but, subject to that, does not go to the merits.
Objection (7)
This objection refers to a Circuit Court case which was disposed of prior to the hearing. The fence referred to was removed and the objection has no validity.
Objection (8)
Any possible detriment (which at this stage is speculative) to a proposed water scheme is a matter to be dealt with as an environmental question in the context of an application for planning permission.
Objections 4, 5 and 6 were repeated in the oral evidence, and I will deal with them in conjunction with that.
Three objecting co-owners gave evidence. They were Brendan McLoughlin (No.30), Frank McHale (No. 43) and Kevin McMenamon, son of Patrick McMenamon (deceased) (Nos. 26 and 27).
Brendan McLoughlin owns a share amounting to 66/960. (4/64 plus 6/960). He also has shares in two adjoining commonages. He has 785 ewes with lambs at an average of 80 per 100 ewes. Frank McHale has a 1/64th share. He has shares in adjoining commonages and has 550 ewes. Kevin McMenamon is a son of Patrick McMenamon, deceased, who had 2/64 shares. He has 250 sheep and 220 lambs and he also has shares in adjoining commonages.
I might summarise their objections to the scheme of partition (apart from the environmental ones) given in evidence as being:
(1) Lack of shelter. Sheep go round or down the mountain to avoid bad weather. There would be no shelter in individual plots.
(2) No access to adjoining commonage if there were individual fenced plots.
(3) No choice of herbs. Sheep have to move to find herbage. There is only a certain amount of vegetation. It grows in the bog in the spring which is sage for the rest of the year. In the high hill it grows later in the year and the lower end is used in late winter or spring.
(4) If there are fences blocking the sheep’s path, they will stand until they learn to go around.
(5) No water.
(6) The fences would blow down and the roads would be washed away.
(7) The cost of fencing is such that there would be very little money to be made after fencing.
In relation to water there was evidence that this was not a problem. In any event, it is proposed that each owner will have a right to take water from the lake.
As to the sheep standing at fences until they learn to go around, the answer is that they will learn.
All the other objections represent serious problems from the objectors point of view but are contested by the applicants.
The applicants want individual plots which they are prepared to fence. They do not see lack of shelter as a problem. They do not want their sheep to roam over the mountain. They do not believe the plots are not viable or that there will be no economic return.
Should they have to give up their hopes and aspirations because the objectors want to retain the status quo? On the other hand should the objectors be forced into taking individual plots which they see as unviable, useless for sheep grazing and uneconomic to fence?
It seems to me that the viewpoint of both sides could possibly be accommodated if the commonage is partitioned between those who want individual shares and those who want an unfenced commonage to continue.
First of all it is necessary to decide whether it is possible under the section to allot shares to some and not to others.
Sub-section 5 of s. 24 provides that an order confirming a scheme shall operate to make each of the owners in common of the holding the owner or tenant in common (subject to the terms and conditions stated in such scheme) of the portion of such holding allotted to him by such scheme. It seems to me that if the scheme provided that a certain number of plots, corresponding to the number of shares held, were to be allotted to the applicants and the residue were not to be allotted, the effect would be to vest the plots in the named owners in severalty and to leave the title of the other owners untouched in the residue. Their share of the commonage left would not change but would have to be expressed as a different fraction. The scheme at present provides that about 51.595 hectares (plots Nos. 65, 66, 67 on the Land Commission map) are to remain undivided. This is an area of bog at the lowest part of the commonage. This would have to be divided proportionately between those becoming owners in severalty and those remaining joint owners.
I consider that it is possible to divide the commonage as suggested within the terms of sub-s. 5 so that the applicants get individual shares plus a proportionate part of the bog to hold in common, and the remaining shareholders hold the residue of the commonage and a proportionate part of the bog in common.
Assuming that planning permission (or outline planning permission) is forthcoming or is not required for the proposed fences and roads, I propose to examine the application for partition with that possible solution in mind.
The first thing to ascertain is how many shares are involved. The scheme as prepared lists 44 shareholders for 64 shares but in fact there are only 42. Of the 44 shareholders listed, there is one applicant, Thomas Loftus, listed for two numbers (8 and 9) and one objector, Brendan McMenamon, listed for Nos. 26 and 27. Thirty one shareholders applied for partition; eight objected and no reply was received from three.
The division of the shares is complicated by the fact that 22 of the 64 shares were sold by Robert Stoney in 1984 and divided unequally between nine owners as follows:
Thomas Michael Ginnelly (No. 31) 66/960
Brendan (Patrick Brendan) McLoughlin (No. 30) 66/960
Michael Holmes (No. 2) 66/960
Michael F. Loftus (No. 1) 44/960
Margaret Ryder (No. 37) 22/960
Thomas and Margaret Kilcoyne (No. 29) 11/960
John Kilcoyne (No. 28) 11/960.
15/960 is the equivalent of 1/64. Some of those who bought already had a 1/64th share or more in the commonage.
Of the eight objectors who sent in written objections, Margaret Ryder (No. 37), entitled to 1/64 plus 22/960, was not represented and did not appear at the hearing. Mr. Holmes, a spokesperson for the applicants said she was now in favour. She must be given an opportunity to opt for partition or not.
The objectors own shares as follows:
Michael Murray (No. 6) 1/64
Margaret Calvey (No. 22) 1/64
Brendan McMenamon (Nos. 26 and 27) 2/64
Brendan (Patrick Brendan) McLoughlin (No. 30) 66/960
P.J. Keane (No. 40) 1/64
Jack and Bernadette Rumbley (No. 43) 1/64 (now Frank McHale)
Thomas Chambers (No. 44) 1/64
Between them they represent 11/64 plus 6/960. If Margaret Ryder is included they represent 13/64 plus 13/960.
Those who have expressed no opinion own shares as follows:
Michael McLoughlin (Nos. 15 and 15A) 22/960 plus 1/64
Representatives of Patrick McLoughlin (No. 32) 2/64
Thomas Keane (No. 39) 1/64.
If after being given further opportunity, they do not express an opinion in favour of partition, the amount of land excluded from partition into individual shares under this category amounts to 5/64 plus 7/960.
Between the two groups the area amounts to 16/64 plus 13/960 (without Margaret Ryder) or 19/64 plus 5/960 (with her).
There is however a certain amount of detail to be cleared up in relation to title. No order should be made converting an individual share unto a share owned in severalty unless the registered owner or the personal representative of the registered owner, or a person entitled to be registered as owner, has applied in writing. Of the 31 signatories to form 131 some signed as personal representatives. The following need to prove their title by production of letters of administration or grants of probate:
M.J. Ginnelly (No. 3) as personal representative of Thomas Ginnelly registered owner Folio 26675
Peter Loftus (No. 5) as personal representative of Michael Loftus (Bridget) registered owner of Folio 26656
Martin O’Malley (No. 18) as personal representative of Mary O’Malley registered owner of Folio 29525
Delia Reilly (No. 19) as personal representative of Bridget Loftus registered owner of Folio 26655
Patrick Masterson (No. 23) as personal representative of Michael Masterson registered owner of Folio 27003
James Gorman (No. 42) as personal representative of Anthony Gorman registered owner of Folio 26684.
In the case of Folio 26651, John Loftus (No. 25) signed for himself and his co-owners Peter and Kathleen Loftus. His authority to do so needs to be proved.
John Ludden (No. 34) who bought from Michael Ginnelly, registered owner of Folio 26672, has to prove his title.
Mary Anne Fahey (No. 33) who is registered owner of Folio 26661 under her maiden name Mary Anne Gibbon, should produce her marriage certificate.
The following registered owners who signed the original form 131 were served with notices c/o another person, as follows:
Teresa McLoughlin and Ellen Moran (No. 14) c/o Rose Anne Molloy
Thomas O’Connor (No. 21) c/o Michael Holmes
John Kilcoyne (No. 28) c/o J.F. Loftus
Thomas and Margaret Kilcoyne (No. 29) c/o J.F. Loftus
Christopher Cusack (No. 36) c/o J.F. Loftus.
These registered owners should acknowledge in writing their authority given to receive notices on their behalf.
Concerning those who did not respond to notices, the following matters need to be attended to:
Michael McLoughlin (No. 15A) was served with notices re: Folio 26657, registered owner, Michael Loftus (Railway). He should be given an opportunity to opt for an individual share in respect of Folio 26661 (No. 15A) as well as in respect of Folio 12625 (No. 15) on which he is the registered owner. He will have to prove his title to Folio 26661. If he fails to respond, I would need to be satisfied that the person entitled to this folio had been served.
In relation to Folio 43934 (No. 32) the personal representatives of Patrick McLoughlin deceased, the registered owner, were served but without naming any individual. According to Mr. Michael Holmes, a niece and nephew of Mr. McLoughlin are in occupation but no grant has been taken out. They should be contacted to see whether a grant has been extracted and what choice the personal representatives want to make.
The third unresponsive co-owner, Thomas Keane (No. 39), registered owner of Folio 26670, was served but should nevertheless be given another opportunity to decide which option he wants.
In relation to the objectors, the title of Brendan McMenamon (Nos. 26 and 27), registered owner of Folio 18289, has been proved to the 1/64th share formerly belonging to John Joyce, as registered owner of Folio 26660, and the 1/64th share formerly belonging to Bridget Kelly, as registered owner of Folio 26665. However Brendan McMenamon has since died and his son Kevin gave evidence. He should prove his title either as personal representative or as registered owner.
Brendan (Patrick Brendan) McLoughlin (No. 30) has proved his title as registered owner of Folio 12623.
Francis McHale produced photostat transfer dated 22nd July, 1985, from Jack and Bernadette Rumbley (No. 43) the registered owners of Folio 26669. He should prove his registration as registered owner.
The title of Margaret Calvey (No. 22) as personal representative of John Calvey deceased registered owner of Folio 47064 should be proved.
Since each share represents approximately 30 acres the objectors have a minimum of 11 shares (plus 6/960) with a possibility up to 19 shares (plus 5/960).
The area which would be available as a reduced commonage is between 330 and 570 acres.
The objectors were offered their choice of land at the beginning. If they were offered their choice of a block of adjacent shares in the scheme would that dispose of all their objections?
It would dispose of their objection to lack of shelter and no access to adjoining commonages. The sheep would be free to move from one commonage to another and to go up, down or round the mountain at will. The objectors are saved the expenses of fencing and are not obliged to take what they consider to be uneconomic holdings.
If there were between 330-570 acres in one section would the herbage be adequate? Since the objectors will be able to choose, they can choose whatever combination of plots suits them best. I consider that an area of even 330 acres chosen by experts would represent a viable commonage.
The steps which now have to be taken are:
(1) Clear up the planning aspects. It is only in the event that roads and fences can be built that an order for partition can be made.
(2) Clear up the title aspects of the application. Give Margaret Ryder and the non-responding owners another opportunity to indicate their choice.
The question of Land Commission consent to subdivision has not been mentioned. If it is necessary, it should be obtained.
(3) Let the objectors choose a block of shares corresponding to the number of shares held by them and the non-responding owners. Depending on the block chosen some adjustment may have to be made. In default of agreement I will indicate a block.
(4) The applicants whose shares have been chosen by the objectors have to be re-allocated shares. I will hear submissions whether this should be by a draw among themselves for the shares formerly allocated to objectors or non-responding owners or whether there should be another draw among everyone.
I would be very hopeful that the proposed solution disposes of the objections in a way which meets them fairly yet still allows the vast majority of the shareholders to achieve their ambitions.