High Court of Ireland Decisions

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:-

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:-

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:-

9. The Third Schedule reads:-

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:-

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:-

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:-

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:-

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:-

17. Wylie takes the view that:-

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:-

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:-

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:-

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:-

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):-

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:-

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.

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:-

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:-

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.