Gaeilge

Title:	O'Mara & anor -v- Morrisson
Neutral Citation:	[2003] IESC 53
Supreme Court Record Number:	77/03
High Court Record Number:	2001 17589P
Date of Delivery:	10/13/2003
Court:	Supreme Court
Composition of Court:	McGuinness J., Hardiman J., Geoghegan J.
Judgment by:	Geoghegan J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Geoghegan J. Link McGuinness J., Hardiman J.

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McGuinness J.
Hardiman J.
Geoghegan J.BETWEEN/JUDGMENT of Mr. Justice Geoghegan delivered the 13th day of October 2003

The respondents are the owners and occupiers of a substantial house with grounds in Dalkey, Co. Dublin. At the time of purchase a total price of IR£1,010,000 was expressly apportioned so that IR£120,000 of the total purchase price was attributed to the benefit of certain covenants and easements. The purpose of the covenants was essentially to secure privacy for the respondents and they were, therefore, highly restrictive of development. Alleged breaches of these covenants have led to this litigation.

The case comes before this court by way of appeal from an order of the High Court (Kelly J.) made the 14th of February, 2003. In the High Court it was sought to injunct intended works for the purposes of widening a driveway from the public road which serviced both the respondents’ house and a house on the retained lands owned and occupied by the appellant. A mandatory injunction was also sought with a view to reinstating a hedge which had already been removed.

In effect there were three issues before the High Court. First of all it was alleged that these works contravened the protective covenants. Secondly, there was an issue as to whether planning permission was required for the carrying out of these works. That second issue, although ruled on in a kind of provisional way in the judgment of the learned High Court judge was to some extent a moot for the following reasons. Without prejudice to the view of his advisers that planning permission was not necessary the appellant did in fact apply for planning permission. That permission had not been granted as of the date that the proceedings were instituted and for that reason an injunction under the Planning Acts was sought as an alternative remedy to an injunction for the breaches of covenant. As of the date of hearing in the High Court a permission had been issued by the local planning authority but this was under appeal to An Bord Pleanála. It emerged at the hearing of this appeal that An Bord Pleanála has overruled the decision of the planning authority and has refused the permission.

The appellant having chosen to go the planning permission route, I do not consider that this court should now make any ruling as to whether planning permission was or was not necessary. It seems to be more or less conceded that despite the observations of the learned High Court judge, the planning issue did not loom large at the High Court hearing because of the fact that permission had in fact been granted. What particularly concerns me about expressing any view on it is that under s. 5 of the Local Government (Planning and Development) Act, 1963 and the equivalent replacement section in the current legislation the question as to what in any particular case is or is not “development” or “exempted development” has to be referred to and decided by Bord Pleanála. There is then an appeal from that decision to the High Court. I am doubtful that that procedure can be by-passed in the manner attempted in this case, but at any rate I do not find it necessary to express any view on it. In my view, the terms of the covenants determine this appeal. To an extent however the planning question may arise in relation to the obligations under the covenants also and I will be returning to that in due course.

The third issue related to whether a particular wall was a party wall or not the relevance of this being whether the appellant was a trespasser in relation to certain aspects of the works. The learned High Court judge did not find it necessary to make any decision on that point. If this court were to find it necessary that the party wall issue be determined it would have to send the case back to the High Court.

The learned High Court judge, in his judgment, raises the question as to whether there might in fact be a fourth issue. At p. 12 he said the following:

“I myself raised a fourth issue which seemed to me to be one of considerable practical importance from the point of view of carrying out development to the lower part of the driveway. I found it difficult to see how the driveway could be widened without the defendant acting in excess of his right of passage and repassage over the existing lower driveway which is in the ownership of the plaintiffs. I thought it unlikely that works of that type could be carried out without trespass and so would be an interference with the plaintiffs’ rights in respect of that stretch of the driveway. The evidence of the plaintiffs’ architects was to the effect that it would be quite impossible to carry out the works contemplated without such interference.”

While there seems to be considerable force in the observations of the learned judge, I do not think that it would be appropriate to broaden the issues on the appeal and in that regard even the plural is doubtfully appropriate because in my view the only matter which this court can now determine is whether the learned High Court judge was correct or incorrect in his view that the proposed works would constitute breach of covenant.

Although the case lasted several days in the High Court with oral evidence, the only factual matters, apart from general explanation of the geography of the property which needs to be elaborated on in this appeal is certain relevant correspondence between the parties.

The problems began with a relatively innocuous letter of the 24th of October, 2001 from the appellant’s architect, Mr. Chris Ryan, to the respondents’ architect, Mr. Desmond Crean. That letter read as follows:

“Dear Desmond

Re: New driveway to Kilross House and others

Following discussions with Conor Cavanagh, the new owner of Mount Alverno and his architect, Desmond Sheehan of Sheehan and Barry, and Joe Kennedy, Eddie Irvine’s architect, we have prepared proposals for the driveway, a copy of which is enclosed.

The proposal should not affect your client much. We have made arrangements for the occupants of Kilross House to park and have access from Mount Alverno. We will be connecting into the front gate with an as yet to be decided entry system. We will also be putting in lighting in the new driveway. We will have to liaise in the lighting on the lower portion of the driveway, to the north of your client’s portion of the drive. When we have the legals wrapped up, we will be producing further details which we will pass on to you for your information and comment.

If you have any initial comments, please let me know.

Yours sincerely

Chris Ryan”

In order to understand that letter it should be explained that on what I have already referred to as “the retained lands” were three other houses “Mount Alverno” (not to be confused with Monte Alverno, the respondents’ house) “Kilross” and “The Chalet”. The same entrance serves all three of these houses together with the respondents’ house. As one drives up the driveway from the public road which is Sorrento Road in Dalkey the first house is the respondents’. The driveway up to that point is part of the respondents’ property but the occupiers of the other three houses enjoy a right of way over it. I will refer to some other geographical features when treating of later correspondence.

The letter of the 24th of October, 2001 elicited a reply from Mr. Crean dated the 2nd of November, 2001 in the following terms:

“Re: Kilross and Monte Alverno

Dear Chris

Thank you for your letter of the 24th of October, 2001 and enclosure.

I will be away from 7th to 11th with the RIAI Conference and hope to meet Phons O’Mara the following week when we will discuss and make any comments considered relevant as soon as possible.

Yours sincerely

Desmond Crean”

Mr. Crean wrote a further letter then to Mr. Ryan dated the 19th of November, 2001 and that reads as follows:

“Your client: Kilross House

Our client: Monte Alverno

Dear Chris,

We met as promised our client Phons O’Mara on Wednesday 14th of November last and advise you hereunder of our client’s concern as follows:

1. Maintenance:

Despite previous attempts no offer has ever been made by your client for the shared costs associated with the main gates and driveway. This is an ongoing costs for a facility enjoyed by your client and others but managed and paid solely by our client.

2. Bell at Gate:

We believe this was agreed many years ago. Basically our client does not wish to be inconvenienced with any work being carried out.

3. Electrics, lights, security:

Refer to 1 above.

4. Driveway general:

Our client will be concerned about keeping the existing driveway clean of debris, sand, soil etc. from the proposed works. We would draw your attention to two problems.


(a) Excessive dirt collecting in existing gate mechanical system at base and causing the gates to not operate.

(b) At present an acceptable amount of water cascades down the driveway. It would be of some concern if this is increased by the new hard surface. We strongly suggest you consider drains across the new driveway taken to the surface water system to prevent a greater increase of water which if increased will be like a river on the main lower driveway.


5. Foundations:

We trust there will be no interference of existing walls to Monte Alverno. We should be advised if there will be any disturbance.

6. Pedestrian gate to Monte Alverno:

We note a new wall to be constructed and is shown abutting the side pillar of the pedestrian gate. We would like to agree a detail of this proposal.

7. Disturbance:

Basically our client wishes to be left alone and not disturbed.

At present he acts as an answering service for your client and others on the site, despite meetings to resolve same many years ago.

8. Fees:

We indicated some fee involvement as our client will not meet same we indicated £300 or thereabouts already we have spent four hours not to mention previous meetings over the years. If we are to be involved we wish to be paid monthly based on a monthly time basis when the above reaches £500 net. Our hourly charge will be £120 for a principal and £60 for staff members as appropriate. Finally, the above points are brief and there may be other issues that will need addressing. We await hearing from you.

Yours sincerely

Desmond Crean”

It is obvious that as of that stage the parties were in civilised correspondence and no serious dispute had arisen. All that changed with the next letter from Mr. Ryan to Mr. Crean dated the 22nd November 2001. There were eight bullet points in that letter and I do not find it necessary to cite it in full. To a certain extent it was simply dealing with points that have already been referred to, but what was new was the third point in the letter which was headed “Electrics, lights, security”, etc. and it read as follows:

“It is our client’s wish to widen the lower stretch of the right of way, making the whole approx. 5m wide. (See attached sketch). In the immediate short term we intend to remove the vegetation to the back which work will start next week. We will be running our services between the gate and Kilross House and Mount Alverno in this area. We are aware that your client has placed his security cameras, lighting and associate cabling on our client’s property in this area. These will be affected by the works and we must agree on a new position for them. We would be grateful for your suggestions on this.”

The letter ended with the following sentence:

“As some works are being started next week, we would appreciate any comments or suggestions as soon as possible.”

The map annexed to that letter showed very extensive changes to the driveway. While the object was to widen it quite substantially that involved considerable work. It would seem reasonably obvious that the appearance and character of the driveway would be significantly changed.

That letter of the 22nd of November was replied to by a letter of the 27th of November, 2001 from Mr. Crean to Mr. Ryan and it read as follows:

“Re: Monte Alverno

Dear Chris

I write to advise my client’s deepest concern regarding many proposals suggested in your letter dated 22nd of November 2001.

We have been asked to refer the matters of boundaries, removal of trees, shrubs, lights, cameras, widening of driveway to our client’s solicitor to check your client’s right to carry out such work without our client’s consent on or near our client’s property.

I suggest that both of our clients’ solicitors agree the lease legalities before any work is carried out.

I trust no work will start on the areas referred to without advising us.

Yours sincerely”

In actual fact because it appeared that the works were going ahead these proceedings were instituted on the 30th of November, 2001 and on the same day an interim injunction was granted by the High Court (Lavan J.). That injunction subject to an agreed variation continued until the date of hearing.

Apparently, the letter of the 22nd of November, 2001 was not received by Mr. Crean until Monday the 26th of November. In relation to the reaction to that letter Kelly J. at p. 9 of his judgment says the following:

“I accept the plaintiffs’ architect’s evidence when he says that he was greatly surprised by this letter because included with it was a single sheet plan which represented in diagrammatic form the proposal which was made for the first time in the letter concerning works to be done on the lower part of the driveway. The plaintiffs’ architect immediately became concerned and contacted the first-named plaintiff.”

I have already observed that the lower part of the driveway was owned by the respondent, the other house occupiers having merely a right of passage over it. The upper part of the driveway however was owned by the appellant. What complicated matters was that the appellant also owned as part of his take, a strip of land adjoining the lower part of the driveway.

The next part of the High Court judgment is also relevant and it reads as follows:

“I accept the evidence of the plaintiffs’ architect that he met the defendant’s architect on site on the 29th. At that stage a contractor had moved in and was carrying out excavations of part of the driveway which is in the ownership of the defendant. A considerable amount of excavation had been done to lead to a widening of that part of the driveway. A number of shrubs and trees of about twenty feet in height had been removed. These trees gave considerable privacy to a number of houses. Deep concern was expressed by the plaintiffs’ architect to the defendant’s concerning what had happened and he also resurrected an issue which had figured previously in discussions namely, his view that planning permission was required for this work. He took that view because in his opinion Kilross House was a protected structure and he said that any part of a site or building or structure which is protected requires planning permission. The defendant’s architect was of a different view.

The plaintiffs’ architect gave evidence that the proposals in respect of the widening of the driveway at the lower end could not be carried out without affecting the existing driveway owned by the plaintiffs. He said that it would be impossible not to disturb the existing driveway while carrying out the proposed works.”

The learned judge went on to point out that the plan which accompanied the letter of the 22nd of November in addition to showing the proposed works also showed a low wall. There was a dispute as to whether that wall was a party wall or not or whether it was the property of the appellant. It has been pointed out in counsel’s submissions that the expression “party wall” had several meanings but nothing turns on that here. Either the wall was the sole property of the appellant or the respondents had some ownership interest in it. As I have already pointed out this court cannot be concerned with this issue since it was never determined in the High Court.

Did the proposed works contravene the covenants? The learned High Court judge held that they did. As to whether he was right or wrong in that view is the only question in my opinion which this court can now consider. It is, therefore, immediately necessary to set out the relevant covenants in full.

The deed in which the relevant covenant is contained is an indenture of conveyance and assignment dated the 11th of December, 1992 and made between Renata Elisa Coleman (otherwise Renata Eliza Coleman) of the first part, Kilross Estates of the second part and Alphonsus O’Mara and Claudia O’Mara of the third part. The restrictive covenant is contained in paragraph 1.4 of the conveyance and reads as follows:

“The First Vendor and the Second Vendor HEREBY JOINTLY AND SEVERALLY COVENANT with the purchasers so as to bind the owners and occupiers for the time being of the Retained Lands and so that this Covenant shall be for the benefit and protection of the Sold Lands, as appurtenant rights in relation thereto and every part thereof and shall enure for the benefit of the purchasers and the persons deriving title under them to the Sold Lands or any part thereof, THAT;

1.4.1 Development of the Retained Lands (save and except the Pink Lands) shall be restricted to:


(a) the extension, renovation, alteration or rebuilding of each of the existing houses respectively known as ‘Mount Alverno’, ‘Kilross’ and the ‘Chalet’ provided that such works shall not involve any change of use. AND

(b) the construction of an additional two houses each to be used as a single private dwelling house only, each to comprise an area not exceeding four thousand square feet and each to be located and constructed so as to maintain the level of privacy of the Sold Lands as at present existing in relation to same.


1.4.2 No development whatsoever shall be carried out within the boundaries of the Pink Lands SAVE the construction and use of a driveway leading from the Right of Way area shown hatched black on Map 2 annexed hereto the line of which driveway may encroach on the Pink Lands north of the points marked “G” and “H” on said Map 2.”

An immediate problem arises as to what is meant by ‘Development’ in the deed. The learned High Court judge suggests two alternative interpretations. The first of these which is the one which finds favour with him, is that it is self-defining having regard to the wording of the deed. The second is that it had the same meaning as the meaning which it has under the Planning Acts. In the written submissions lodged on behalf of the appellant in the High Court a third alternative is suggested which would certainly in my view be open to argument. It is suggested that development meant development within the meaning of the Planning Acts but excluding “exempted development”. A fourth possibility might be to give the word “development” its ordinary dictionary meaning or to put it another way the kind of meaning it would have been given if contained in a deed before 1963. However, I am quite satisfied that this last meaning could not be the correct one in this case having regard to the terms of the covenant and at any rate it was never argued. As I understand it from the written submissions and what was argued at the appeal the self-defining interpretation applied by the learned High Court judge is not seriously in dispute between the parties. What is in dispute is the learned High Court judge’s application of his own definition. The appellant contends that the proposed works fall within the expression

“ the extension, renovation, alteration or rebuilding of each of the existing houses respectively known as ‘Mount Alverno’, ‘Kilross’ and ‘The Chalet’ provided that such works shall not involve any change of use.”

The respondents contend that the works in controversy in this case fall well outside that expressly permitted limited development and they further contend that the works cannot be implicitly permitted by the deed as being merely ancillary to the permitted development.

The trial judge did not agree with those submissions put forward on behalf of the appellant. To a certain degree the view of the learned trial judge has been borne out by the ultimate refusal of the permission by An Bord Pleanála. Clearly, An Bord Pleanála took the view as did the learned trial judge that this was development which substantially altered the nature of the driveway and its environs. It would appear also that the learned trial judge was influenced by the fact that in relation to the lower part of the driveway what was involved was not the extending of the width of a driveway owned by the developer but rather adding a strip of the developer’s own land onto a driveway over which he had merely a right of way.

The written submissions lodged in this court on behalf of the appellant have rather unfairly characterised the views of the learned High Court judge as so restrictive as to lead to absurdities which might prevent quite minor works in the future. There are two points which I would make in relation to this submission. First of all, I do not agree that the judgment of the High Court can be characterised in that way. Secondly, if and in so far as the learned High Court judge expressed views that were not strictly relevant to the facts of this case he was merely speaking obiter. Counsel for the appellant at the oral hearing of this appeal was inclined to encourage this court to go a step further and to lay down the parameters of the covenants so as, as it were, to provide the appellant with more satisfactory title deeds into the future. It would be both wholly inappropriate and wholly unwise for this court to accept that invitation. Any problems that may arise out of ambiguity and draftsmanship can only be determined on a case by case basis. But any decision of this court should relate only to the actual works involved in the litigation.

It is important to reflect on the purpose of the covenant. It is not there to prevent unauthorised development. The Planning Acts already provide adequate remedies for that purpose. It is there to prevent development which would otherwise be authorised under the Planning Acts. Obviously, there is an overlap but the primary concern of the respondents when purchasing the property would have been to protect themselves from development for which permission under the Planning Acts might in fact be given.

I take the view that the appeal ought to be dismissed. As to whether there should be any alteration in the terms of the order made by the High Court in the light of the subsequent refusal by An Bord Pleanála can be discussed with counsel.