High Court of Ireland Decisions

1. The Plaintiffs are the owners and occupiers of two dwelling houses within a small residential development which is known as Ashurst (and will hereinafter be referred to as Ashurst) in College Road, in the City of Kilkenny. Ashurst which was developed and constructed between 1982 and 1985 (on foot of planning permissions having reference numbers P1201 and P1201 (a) dated respectively the 5th day of October 1981 and the 30th day of March 1982) comprises a total of 17 dwelling houses (being 8 town houses and 9 detached homes) together with a building at the entrance to the development which contains 8 residential apartments. Virtually the entire of the development is contained within a high stone and concrete boundary wall so that Ashurst in fact comprises a residential cul-de-sac with access to College Road which is a regional route leading to Kilkenny city centre.

2. Most of the western perimeter of Ashurst comprises an area of land (hereinafter referred to as "the wooded area") adjoining the boundary wall end comprising approximately 0.332 acres which is grassed and upon which a stand of mature trees has been retained through which a pedestrian footpath runs. The total area contained within the boundaries of Ashurst and including all of the land upon which the houses, apartments, open spaces and roads and footpaths stand is estimated to be 3.223 acres.

3. The Defendant is the registered owner of an undivided one third share in certain lands immediately adjoining Ashurst and the Defendant's two sisters are registered owners of the remaining two undivided one third shares in those adjoining lands (hereinafter referred to as Walkinslough) and on the 19th day of September 1995 the Plaintiffs learnt that the Defendant intended to commence the construction of a development of some 65 houses at Walkinslough pursuant to permission granted in that behalf by Kilkenny Corporation on the 7th day of May 1993 and confirmed on Appeal by An Bord Pleanala by Order of that Bord dated the 7th day of September 1993.

4. The planning permission (register reference no. P30/93) for the construction of the 65 houses at Walkinslough expressly provided that vehicular and other means of access to and egress from Walkinslough should be effected, inter alia, by the removal of mature trees within the wooded area and by the construction of a roadway over part of the wooded area and by the removal of part of the boundary wall separating Ashurst from Walkinslough thereby enabling vehicular and other traffic to pass and re-pass between Walkinslough and the various thoroughfares provided by College Road via Ashurst Road (which had hitherto been reserved for the use of persons seeking to effect access to and egress from Ashurst).

5. By Order of the High Court (Kinlen J.) dated the 22nd day of September 1995 and upon the application of the Plaintiffs made ex parte the Defendant was restrained until the 27th day of September 1995 or until further Order from embarking upon or proceeding with any works on Walkinslough or from doing anything which might interfere with the wooded area and the residential amenity provided thereby or from gaining access to or egress from Walkinslough by or through the wooded area.

6. By further Order of the High Court (McCracken J.) dated the 26th day of October 1995 an Application by the Plaintiffs for an interlocutory injunction in the terms of the interim Order dated the 22nd day of September 1995 was adjourned pending the trial of the proceedings herein upon undertakings (a) by the Defendant in the terms of the Interim Order dated the 22nd day of September 1995 and (b) by the Plaintiffs in the customary terms as to damages.

7. In these proceedings the Plaintiffs who enjoy the express support and approval of a large majority of the owners and occupiers of the other dwelling houses within Ashurst, are claiming equitable relief by way of a permanent injunction restraining the Defendant, her servants and agents, and any purchaser or transferee from her or any person claiming any interest in her lands at Walkinslough from seeking to effect access to and egress from her lands at Walkinslough by (a) constructing a road on or over the wooded area or (b) cutting down trees on the wooded area, or (c) removing all or part of the boundary wall separating the wooded area from Walkinslough or (d) in any manner howsoever by entering onto or into or interfering with the wooded area.

8. The Plaintiffs claim that they are entitled to the relief which they seek because:-

9. It is contended on behalf of the Defendant:-

10. The following facts were proved in evidence at the hearing of this action:-

11. The permission provided, inter alia, that "...the developer shall ensure that adequate protection is given to all existing trees proposed to be retained, during construction works". (See condition 7 thereof) and placed upon the developer an obligation to "...identify and mark on site, all trees proposed to be removed and to submit to the Corporation a plan indicating these trees". - (See condition No. 8).

12. The reasons given by Kilkenny Corporation for conditions numbers 7 and 8 above was in both instances declared to be "in the interest of amenity".

13. He recorded his calculations, findings and conclusions on a sheet of notepaper which he headed "Areas" and which was dated the 19/3/81. This document is of importance. Its author concluded that the total site area of Ashurst amounted to 3.223 acres. He then provided calculations in respect of density and continued as follows:-

14. Total site area

15. Open space = 0.332 acre = 11.97%

16. I am satisfied on the evidence that on the 19th day of March 1981 Kilkenny Corporation through its Planning Officials and during the consideration of an Application for permission for the Ashurst Development was, quite properly, and in its capacity as Planning Authority, satisfying itself that the residential development which was then being proposed for Ashurst would provide for the owners and occupiers of dwelling houses sufficient amenity by way of public open space to comply with the recommendations of the Kilkenny County Development Plan which had been published in 1980 and which provided (at P.21), inter alia, that "...a minimum of 10% of the area of a residential development will normally be required as public open space, but this figure may be greater than 10% where, in the opinion of the Corporation, amenity features worthy of preservation exist on the site....."

17. Clearly the Planning Authority's Official was satisfied on the 19th day of March 1981 that the residential development proposed for Ashurst provided for public open space of 11.97% in respect of housing and 54% in respect of apartments.

18. On 27th October Mr. Hogan forwarded a cheque in the amount of £1,250.00 to the County Manager of Kilkenny County Council with a covering letter on the same date indicating that this cheque was "...a compromise figure to settle all outstanding maters on the take-over of the above development and in the interests of harmonious relationships between our client and your Corporation".

19. Although this latter letter and the accompanying payment was apparently sent to Kilkenny County Council it appears to have been received by Kilkenny Corporation and no suggestion has been made on behalf of the Plaintiffs that this payment represented anything other than an attempt on the part of R.A. Investments Limited to conclude the transaction whereby Kilkenny Corporation would "take in charge" and become responsible for the maintenance of the public roadway, the adjoining footpaths and verges and all other areas within Ashurst (including the wooded area) other than the lands which had already been conveyed by R.A. Investments Limited to individual owners of dwelling houses and apartments.

20. By letter dated the 25th day of October 1990 Mr. Donal O'Brien, the Town Clerk of Kilkenny Corporation, replied, inter alia, in the following terms:-

21. By letter dated the 6th day of November 1990 Messrs. Miley & Miley on behalf of Ashurst Residents Association wrote to Mr. O'Brien in response to his letter of 25th October, inter alia, in the following terms:-

22. By letter dated the 21st November 1990 Mr. O'Brien on behalf of Kilkenny Corporation replied as follows:-

23. In the proceedings herein Mr. O'Brien (having consulted with his legal advisors at some point close to the trial) was of the opinion that what he conscientiously believed to be the case in October and November of 1990 was in fact mistaken. In his evidence at the trial Mr. O'Brien (having now had the benefit of advice from his legal advisors) stated that in his opinion the wooded area was not part of the pubic roadway in Ashurst but was separate "open space" and he believed that Kilkenny Corporation had taken the wooded area "in charge" as a separate "open space" and not as part of the public roadway.

24. The "Reasons for Conditions" in respect of Condition No. 17 were stated to be as follows:-

25. Mr. Gannon, when pressed on the matter, with particular reference to Condition 17 of Planning Permission Reference No. P18/90 agreed that between 1981 and 1990 Kilkenny Corporation had treated the wooded area as public open space. He went on to confirm that on or about the 20th day of March 1987 he himself carried out a survey of Ashurst during consideration of the Application by R.A. Investments Limited to have the public roadway and other parts of the estate taken in charge. He agreed that whilst his notes record his having surveyed and sectioned off the entire of the footpaths abutting the public roadway but do not record any survey of any part of the footpath which runs through the wooded area which he conceded is and has at all material times been in a poor state of repair in direct contrast to the state of repair of the footpaths abutting the public roadway.

26. Whilst Mr. Gannon was under the impression that Kilkenny Corporation might have carried out some maintenance work on or to the wooded area on a rota basis at one stage he agreed that it certainly had not been maintained at all in the last 2 or 3 years and whilst several owners and occupiers of dwelling houses in Ashurst testified in these proceedings only one such person (Mr. Brian Deering, the owner of No. 2 Ashurst) recalled any person other than a resident of Ashurst cutting the grass within the wooded area and Mr. Deering confirmed the evidence of the other owners and occupiers to the intent that maintenance of the wooded area was entirely carried out by owners and occupiers of dwelling houses in Ashurst who from time to time had to employ contractors to cut the grass.

27. The Defendant contends that at the end of 1987 or at the commencement of 1988 R.A. Investments Limited, the then beneficial owner thereof, divested itself of the entire of its estate, rights, title and interest in and to the wooded area by dedicating the wooded area to the public which accepted the dedication and it is contended that this dedication to and acceptance of the wooded area to and by the public thereby created a public right of way over the wooded area which the Defendant is entitled, with the permission of Kilkenny Corporation, to use for the purpose of effecting access to and egress from her lands at Walkinslough.

28. The Plaintiffs contend that R.A. Investments Limited did not dedicate the wooded area to the public and that if it was the intention of R.A. Investments Limited to dedicate the wooded area to the public then that intention was not realised because there was no acceptance by the public of the dedication which was offered in consequence whereof no public right of way came into existence either prior to the 2nd December, 1991 when rights in favour of the Plaintiffs were recognised at any time or at all.

29. The Defendant argues that the wooded area was dedicated to the public as part of the public roadway when the latter was "taken in charge" by Kilkenny Corporation in February 1988.

30. The Plaintiffs argue that the wooded area was never "taken in charge" by Kilkenny Corporation but was and is and remains an "open space" which has not been dedicated to or accepted by the public but which is and remains an area through which the public have permission to walk by means of a footpath.

31. It follows from the foregoing that what falls to be determined in these proceedings is whether or not there was or has at any time been an intent on the part of R.A. Investments Limited as beneficial owner thereof to dedicate the wooded area to the public whether, in furtherance of that intention, there has been an actual dedication of the wooded area in favour of the public and an acceptance by the public of that dedication.

32. In order to make the foregoing determination the following questions must be answered:-

33. On the evidence it was abundantly clear that by June of 1987 Messrs. R.A. Investments Limited had sold most of its interests and property in Ashurst and was concerned to divest itself of any residual obligations or responsibilities which might have arisen by virtue of its remaining property rights and interests in Ashurst (that is confirmed by the letter dated 9th June, 1987 written on behalf of R.A. Investments Limited to Kilkenny Corporation by Mr. Michael J. Hogan referring to an agreement by the Corporation to ".....take the development in charge it being the intent that your corporation will carry out all necessary outstanding works and that our client will have no further responsibility for same").

34. The intention of R.A. Investments Limited was to divest itself of its remaining property interests in Ashurst so that it would have no further responsibilities or obligations arising out of such proprietary interests. On the evidence the sum agreed in the amount of £11,600 could not be regarded as being in any respect consideration (or part thereof) for dedication by RA Investments Limited of any of its lands in Ashurst to the public. The sum amounted to financial commitments by R.A. Investments Limited to Kilkenny Corporation in respect of insurance bonds and other obligations arising out of the interests R.A. Investments Limited in the residential development at Ashurst.

35. Notwithstanding the foregoing I am satisfied on the evidence that throughout the second half of 1987 and at the commencement of 1988 R.A. Investments Limited had a clear intention to divest itself of its property interests in the wooded area and had the appropriate means at its disposal, by virtue of its legal advice and otherwise to achieve that objective whether by dedicating the lands to the public or otherwise and accordingly I am satisfied that at that time there was sufficient intent on the part of R.A. Investments Limited to satisfy the requirements laid down in that behalf by law to enable the wooded area to be dedicated to the public but subject however to an actual dedication of the lands on the part of R.A. Investments Limited and to acceptance by the public of that dedication.

36. A public right of way may come into existence either (a) pursuant to the common law doctrine of dedication and acceptance or (b) on foot of a statutory provision. (See Halsbury's Laws of England (4th Ed. - Reissue) Vol. 21 and Keane - The Law of Local Government in the Republic of Ireland (1982) at pp. 66-68.

37. The Defendant contends that R.A. Investments Limited dedicated the wooded area to the public as part of the public roadway in Ashurst and that its acceptance by the public was effected by the resolution which was passed by Kilkenny Corporation on Monday the 8th day of February, 1988.

38. I am satisfied on the evidence that the steps which were taken by R.A. Investments Limited to give effect to its intention to dedicate the wooded area to the public were as follows:-

39. As a result of the steps which were taken by R.A. Investments Limited, Kilkenny Corporation on Monday the 8th February, 1988 passed the following resolution:-

40. It is contended on behalf of the Defendant that the Resolution of Kilkenny Corporation on the 8th February, 1988 was the final step in the dedication by R.A. Investments Limited to the public of the wooded area being part of what is described as "... that Section of road situated in the townland of Walkinslough, Kilkenny, serving Ashurst Housing Development for a distance of 194 metres from its junction with Callan Road".

41. During the trial of this action it was expressly conceded on behalf of the Defendant that insofar as the wooded area was dedicated to the public by R.A. Investments Limited it was so dedicated because it was and has at all material times been an integral part of the "... Section of road...." referred to in the Resolution of Kilkenny Corporation dated the 8th February, 1988.

42. It has not been suggested either in argument on behalf of the Defendant or in any other manner that the wooded area was or has at any time been dedicated to the public by means other than the means which I have just outlined and accordingly no other potential means of dedication requires to be considered herein.

43. Sub-section (1) of Section 25 of the Local Government Act, 1925 (No. 5 of 1925) provides as follows:-

44. In The Law of Local Government in the Republic of Ireland (1982) at p. 69 Keane J., the learned author of that immensely valuable work, observed that the foregoing section ".... is peculiarly worded. If a public right of way for foot passengers, animals and vehicles exists over a road, it can only have come into existence either by statute or because of the express or presumed dedication by the owner for that purpose. In either event, it already appears to possess all the features of a 'public road'. What then is the necessity for declaring it to be a public road? It seems reasonably clear that the section was passed so as to enable local authorities to spend the ratepayers' money on repairing roads without having to prove to the Local Government Auditor in every case that the portion of the roadway in question had been expressly or by implication dedicated to the public...." Section 2 of the Local Government Act, 1953 provides inter alia that:-

45. The Resolution of Kilkenny Corporation dated the 8th February, 1988 comprised a declaration made by the Corporation pursuant to the provisions of Sub-section (3) of Section 2 of the 1953 Act and it follows (and is I believe conceded on behalf of the Plaintiffs) that on or before the 8th day of February, 1988 a public right of way for foot passengers, animals and vehicles existed over a certain ".... Section of road.... serving Ashurst Housing Development for a distance of 194 metres from its junction with Callan Road".

46. Certainly it is clear that where resolutions are passed and declarations are made either pursuant to Section 25 of the 1925 Act or Section 2 of the 1953 Act ".... in an appropriate case, the High Court will declare invalid a resolution purportedly passed under these sections which declares a road to be a public road over which in fact a private right of way only existed". (See Keane - The Law of Local Government in Ireland (1982) at p. 69). No such declaratory or other relief of that character has been sought by the Plaintiffs herein so that there is a clear recognition on the part of the Plaintiffs of the existence of a public right of way over part of the lands in Ashurst on or before February of 1988. Accordingly, there can be little doubt that R.A. Investments Limited dedicated some or all of the lands which it then owned in Ashurst to the public on or before the 8th February, 1998 and that there was acceptance by the public of that dedication.

47. It has been contended on behalf of the Plaintiffs that RA Investments Limited was not empowered to effect a dedication of the wooded area to the public having regard to particular rights to and in the wooded area which the Plaintiffs claim were then vested in the Plaintiffs and in the other owners and occupiers of dwelling houses in Ashurst which said rights were (say the Plaintiffs) acknowledged by Order of the High Court dated the 2nd day of December, 1991, which said Order was duly registered in the Registry of Deeds on the Index of Names for Acts to effect the lands at Walkinslough, parish of St. Patrick's and city of Kilkenny.

48. It is conceded on behalf of the Plaintiffs that on and before the 8th day of February, 1988 R.A. Investments Limited was seised of the wooded area for an estate in fee simple in possession free from any incumbrances other than such rights (if any) as were then vested in the Plaintiffs and the other owners and occupiers of dwelling houses in Ashurst.

49. As I have already indicated, I am satisfied that between 1982 and 1985 it was represented to the Plaintiffs and to the other purchasers of dwelling houses in Ashurst (principally by Mr. Martin Carroll and corroborated by items of advertising literature) that the then vendors (including Messrs. R.A. Investments Limited) would take appropriate steps to ensure that the Plaintiffs and the other owners of dwelling houses in Ashurst would enjoy the amenity of an enclosed cul-de-sac and would be entitled to enjoy the amenity provided by the wooded area as an open space whose mature trees would be preserved as part of that amenity.

50. These representations were not reduced to writing at any time but were made verbally by Mr. Martin Carroll and I am satisfied on the evidence that if the representations made by Mr. Carroll gave rise to rights when they were made then such rights would have been personal or contractual in nature when they were made and would have been either rights arising out of representations made or rights which were additional and ancillary to contracts made between the Plaintiffs and R.A. Investments Limited for the purchase by the Plaintiffs of their dwelling houses in Ashurst. Such personal or contractual rights (if they exist) would not then have enjoyed the status of easements which, ".... being rights which are superadded to the ordinary common law incidents of the ownership of a dominant tenement, and which connote a corresponding burden on a servient tenement against common right, can only be created by statute or grant". See Halsbury's Laws of England (4th Ed. - Vol.14 at para 45).

51. The Deeds of conveyance whereby R.A. Investments Limited conveyed to the Plaintiffs (and the other purchasers) their lands in Ashurst and which extinguished the provisions contained within the earlier contracts for purchase made no provision for rights of the kind contended for but expressly reserved onto R.A. Investments Limited and the other vendor of the lands in question the right, inter alia, to alter the lands in such a manner as it might wish and to execute such works and erections thereupon as it might deem appropriate (see 3rd Schedule, Clause 3).

52. Accordingly, such rights (if any) as the Plaintiffs (and the other owners and occupiers of dwelling houses in Ashurst) enjoyed in respect of the wooded area on and before February 1988 would have been enjoyed as personal or contractual rights arising out of oral representations made by or on behalf of R.A. Investments Limited and the other owners and developers of Ashurst and would not have existed in the form of proprietary rights of the kind which attached to and ran with the lands to which they related.

53. It follows from the foregoing that on and before the 8th day of February, 1988 R.A. Investments Limited as beneficial owner in fee simple of the wooded area free from incumbrances was empowered to dedicate the wooded area to the public.

54. The question which now falls to be determined is whether or not the lands which were dedicated by RA Investments Limited to the public excluded the wooded area and were confined only to the section of roadway which served Ashurst and to the footpaths and verges adjoining that roadway.

55. Whilst it was the general objective of RA Investments Limited in the months leading up to February of 1988 to divest itself of its residual proprietary interests in Ashurst in order to avoid any long term legal or other responsibilities or obligations arising out of its ownership of the lands in question and whilst it was empowered on or before the 8th day of February, 1988 to dedicate the wooded area to the public (having regard to its estate, right, interest in and title to the lands in question) it should not be forgotten that no public right of way comes into existence unless and until an actual dedication is accomplished and that dedication is accepted by the public [see Gwen Smeltzer -v- Fingal County Council (supra)].

56. In order to achieve that dedication and acceptance RA Investments Limited sought to reach agreement with Kilkenny Corporation in 1987 whereby the latter would take all of its lands "... in charge" and it believed that it had reached such an agreement.

57. Kilkenny Corporation, by way of implementing the agreement which it believed it had reached with RA Investments Limited, by Resolution dated the 8th February, 1988 declared a particular ".... Section of road...." to be ".... an Urban Public Road" for "all purposes" pursuant to the provisions of Section 2(3) of the 1953 Act.

58. There is no doubt as to the existence of a public right of way over the "... Section of road...." referred to in the Resolution of Kilkenny Corporation dated the 8th February, 1988 so that logically it follows that on or before the 8th day of February, 1998 the dedication of the "... Section of road...." had taken place and there had been acceptance by the public of that dedication. The Defendant insists that this ".... Section of road...." included the wooded area and points to the agreement between RA Investments Limited and Kilkenny Corporation whereby the latter agreed to take "in charge" the "... entire development known as Ashurst...". However, it must not be forgotten that there must be a dedication and an acceptance by the public of the dedication. Whilst a road authority is empowered to declare particular roads to be public roads they are only empowered to do so in respect of a road over which "... a public right of way for foot passengers, animals and vehicles..." is already in existence. It is not the function of local authorities to accept on behalf of the public the dedication of particular lands to the public by the owners thereof. Whether dedication has occurred and has been accepted by the public is entirely dependent upon the evidence as to whether or not (a) the lands have been dedicated and (b) the dedication has been accepted by the public. Mere proof that a local authority has agreed to take certain lands "in charge" is insufficient by itself to prove that the lands in question have been lawfully and effectively dedicated to the public and/or that the dedication has been accepted by the public.

59. In this case RA Investments Limited wished to divest itself of its proprietary interests in its lands at Ashurst and for that purpose sought to enter into an agreement with Kilkenny Corporation whereby the latter would take all of its lands in Ashurst (including the wooded area) "... in charge". Kilkenny Corporation may well have agreed to take all of the lands concerned "... in charge" (although this is not certain) but, by its officers and officials it drew a clear distinction between the wooded area and the public roadway in Ashurst since:-

60. Accordingly, all of the evidence adduced in the trial on behalf of both parties points inescapably to the conclusion that between 1981 and 1990 (and indeed thereafter), Kilkenny Corporation both in its capacity as planning authority and in its capacity as roads authority treated the wooded area other than as part of the roadway which serves Ashurst. Although evidence was adduced on behalf of the Defendant by expert witnesses who expressed the view and were of the opinion that as a matter of practice the wooded area should be categorised as part of the public roadway and indeed that it was as a matter of fact part of the public roadway, no evidence whatsoever was adduced by either party which was consistent with its use as part of the public roadway or its treatment by Kilkenny Corporation or any other person or persons as part of the public roadway.

61. No evidence has been adduced herein which could reasonably give rise to a finding that the wooded area was separately dedicated to the public at any time either by R.A. Investments Limited or otherwise and indeed no argument to that intent has been advanced on behalf of the Defendant.

62. Similarly, the fact that the wooded area is accessible to the public is not by itself proof of dedication and acceptance (see Abercromby -v- Fermoy Town Commissioners , [1900] 1 I.R. 302 at p. 314) and no such public rights can be acquired at common law (see Smeltzer supra).

63. However, the evidence has established that the wooded area separates the Defendant's land at Walkinslough from the public highway or roadway in Ashurst and is not part of that public highway or roadway. Furthermore, the Defendant has no right or title to or estate or interest in the wooded area which remains the property of another person or party subject to any rights which may have been created or acknowledged by the owner thereof either in favour of the public or in favour of the Plaintiffs and either by user or by Order of the High Court or otherwise.

64. It follows that the Plaintiffs are entitled to the relief which they seek and I will make the appropriate Order after discussion with Counsel on behalf of both parties.