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No. 1997/12470P

“Mr. Finnegan argued that his client had access under the planning permission. Once it had completed the purchase of all the phases of the Plaintiffs 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.... The result is that his client is left with 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 his 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.”

At page 150 I state:-

“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. It appeared to the Court at the time of the initial judgment that with co-operation between the parties it would be possible to get a road in, extending Road 14 into the Plaintiffs land. However, this would require co-operation between the parties which blatantly has not happened. An application was made in respect of the road which would have gone to the area of the Bray UDC. However, both parties should have made joint application showing the proposed road. As co-operation did not exist there was only one planning application which went to An Bord Pleanala and it was basically refused. The Court took the opportunity to visit the site. There is no doubt that Road 15 is effectively and totally blocked. Road 14 in conjunction with Road 15, a series of houses the nearest one to the area being number 151. Then there is a considerable portion of land nearly half the garden wall in number 151 and going in the general direction of the Plaintiffs land. Without being an expert it is quite obvious that Road 14 could be extended. At the moment it is blocked by a wooden fence which was fairly easily scaled. Then you get into a rough area of wild grass with two nests of pheasants it becomes an angle of wide fencing ends at the back of the wall beside house number 151. There is a gap there and there is a clearly defined footpath from there through extremely rough terrain with a great deal of undergrowth. The Court is still of the opinion that with goodwill on both sides this problem could easily be solved with proper consultants and a joint application to the two local authorities. At this late stage the Defendant is prepared to grant the declaration sought in the Statement of Claim, although during the trial he was opposed to the whole idea and in fact denied the existence of a right of way. The Court will accordingly make that declaration set out in the document handed into Court but it does not end there. The Plaintiff now doesn’t want the right of way, though Mr. Finnegan was very insistent on it, but now the Plaintiff wants money, he wants compensation. The behaviour of the Defendant, despite the clear statement of Mr. Finnegan S.C. that his client did not want compensation in rejigging the housing set out, thereby effectively blocking one entrance into the Plaintiffs lands and possibly effectively blocking the Plaintiff having access on Road 14 is regrettable. The Court does direct the issue of damages should be addressed by the Court as to the date on which the damages should be assessed and the nature of the damages and as to whether in fact the land is landlocked. It seems to me on a casual observation this may not be so and having regard to the devaluation of the land and injurious affection this will require a full hearing, including argument as to the date on which damages should be ascertained and the interest payable thereon. These are all issues to be tried as a separate issue in the High Court. It is not necessary for myself to be the presiding Judge but the issue raised with proceedings about a declaration has been determined and the Court is ordering a declaration. The only issue outstanding is the question of damages. I feel that with goodwill on both sides that it could still have been addressed in providing access and getting permission for a full development. However, this is a matter on which the Court will have to consider when it is assessing damages under various headings. There is a third alternative and that is, that the Defendant should buy out the Plaintiffs land. It is not for the Court to try and force a solution on any of the parties but I propose to adjourn these proceedings and it may be necessary (and the Court will hear Counsel) to have pleadings or at least the particulars provided before the matter can be re-listed. If for one reason or another I may not be available the matter can of course be taken up by any other Judge of the High Court. However, it is important that this matter be expedited and the Court will urge both parties to try and co-operate, which ultimately this is going to cause more aggro and will certainly be a costly venture. I will reserve the question of costs.