[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carrick v. Morton [2002] IEHC 65 (13 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/65.html Cite as: [2002] IEHC 65

[New search] [Printable RTF version] [Help]

THE HIGH COURT

2002 No. 6386p

BETWEEN

DESMOND CARRICK

Plaintiff

and

JUSTIN MORTON

Defendant

JUDGMENT of Mr Justice Kelly delivered the 13th day of June, 2002.

1.      This action began on the 2nd May, 2002. In it the plaintiff claims a declaration that he is entitled to rely on a restrictive covenant which is contained in a deed of conveyance of the 29th July, 1954 entered into between Patrick Joseph McGrath and the plaintiff in respect of lands known as Woodtown in the barony of Upper Cross and County of Dublin.

2.      The plaintiff is a professional artist and a member of the Royal Hibernian Academy. When he bought his property in 1954 he did so with a view to both living there and also setting up his studio. In order to be able to paint he says, he required both good light and calm. It was therefore of importance to him that the lands surrounding the property which he was buying would not be built on. Because of that the vendor, Mr McGrath, entered into the covenant which is the subject of these proceedings whereby he agreed to in effect sterilise the land outlined in green on the map annexed to the 1954 deed. The land was sterilised by virtue of Mr McGrath agreeing that he his heirs and assigns should not at any time erect or allow to be erected any buildings of any kind on the lands outlined in green.

3.      The deed in question was registered at the Registry of Deeds on the 15th July, 1954.

4.      In 1968 by a conveyance dated the 28th June the vendor, Patrick Joseph McGrath conveyed the sterilised lands to his son Joseph McGrath.

5.      By a conveyance of the 12th November, 1991 Joseph McGrath conveyed land including part of the sterilised land to the defendant in these proceedings.

6.      The sterilised land consists of eleven acres, two roods and twenty two perches. The area of the portion of the sterilised land acquired by the defendant is approximately one acre.

7.      The lands in suit have been in the ownership of the defendant since 1991. In March, 2001 the defendant applied for planning permission to build a dwelling house on the part of the sterilised land sold to him. On the 3rd April, 2001 the plaintiff wrote to South Dublin County Council objecting to the application on various grounds including the existence of the covenant precluding building on the premises. Notwithstanding the objection, planning permission was granted on the 14th January, 2002. The plaintiff says that he intended to appeal that decision but made a procedural error in that regard and as a result his appeal was not considered.

8.      On the 7th December, 2001 the plaintiff wrote to the defendant in the following terms:

"It has come to my notice that South Dublin County Council planning department granted you permission for a three bedroom bungalow at Kilakee Road and placing it within that area outlined in green on the enclosed map.

As you should be aware, that portion of land is sterilised from further building under a covenant agreed and signed between the late Patrick Joseph McGrath and myself and binds the heirs and assigns of both parties.

No third party has authority to break this covenant.

For your benefit I am attaching a copy of my deed of conveyance within which the covenant is recorded, for your solicitor's attention. Should you start building on any part of that sterilised land then I shall enforce the covenant to prevent a precedent for further development and devaluation of my own property".

9.      That letter was replied to by the defendant's solicitors on the 21st January, 2002.

10.      Having pointed out that they had taken senior counsel's opinion on the defendant's position they said

"Our client purchased his land in 1991 without notice of the existence of the covenant in your favour. The senior counsel in his opinion cited s.3(1) of the Conveyancing Act, 1882 which says

'Provided that a purchaser would not be prejudiced by notice of any instrument, fact or thing unless it was actually in his knowledge or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him, or it came to the notice of his agent'

On the basis of this the senior counsel states that our client should not be bound by the covenant as he had no knowledge of it at the time of his purchase nor had his agent any knowledge of the covenant.

On the basis of the above our client intends proceeding to build on foot of his grant of planning permission".

11.      On the plaintiff's own admission in mid March, 2002 construction work commenced. He viewed the lands on Monday the 29th April, 2002 where work on the foundations had been completed. He viewed it again on the 2nd May, 2002 when the walls had been built and five men were working on the site.

12.      In the meantime correspondence was being exchanged between the solicitors but it is not necessary for the purpose of this ruling to deal with that in extenso. It is sufficient to recite that the defendant throughout that correspondence contends that he is not bound by the covenant because he had no actual notice of it, does not have constructive notice of it and is a bona fide purchaser for value without notice. On the plaintiff's side it is said that he is bound by the terms of the covenant because it is registered in the Registry of Deeds and when he purchased he chose to take a short root of title with all the perils attendant upon that course. As a result whilst he remained unaware of the 1954 conveyance he is nonetheless bound by it.

13.      This is an application for an interlocutory injunction. It is accepted by the defendant that there is a serious issue to be tried concerning the question of whether or not the defendant is bound by the covenant. But even if he is, it is not accepted that it follows that injunctive relief would be granted at trial. I propose to deal with the case on the basis of traditional interlocutory injunction principles since it does not appear to me that the case has about it the attributes which would be required to make relevant the views expressed by McCarthy J. in Irish Shell v Elm Motors.

14.      I am however, satisfied, as indeed the defendant has sensibly accepted, that there is a serious issue to be tried.

15.      I turn to the next question which is whether or not damages would be an adequate remedy.

16.      In this regard a number of points are made by the defendant. It is pointed out that there is a substantial distance between his development and the dwelling house and studio of the plaintiff. The plaintiff's house situate at such a distance is surrounded by no fewer than three rows of trees, two of which are deciduous and one of which in coniferous. Given the distance, the intervention of the trees, and the scale of the defendant's development it is said that there is not nor could there by any real interference with the plaintiff's quiet enjoyment of his premises.

17.      For the plaintiff it is said that he is entitled to what he purchased and that it is no answer on the part of the defendant to say that money can buy off a right to which such weight and attention was given by the plaintiff. As against that the defendant points out that the plaintiff was himself willing to permit a planning permission to be obtained on his own lands for members of his family.

18.      This is not the trial of the action and I am precluded from making any final or binding determinations of either fact or law. However, it seems to me that on the present state of the evidence I cannot say that in the circumstances of this case damages would necessarily be an adequate remedy particularly having regard to the plaintiff's livelihood. I therefore conclude that for the purposes of the interlocutory hearing damages would not be an adequate remedy and therefore must then go on to consider the balance of convenience.

19.      The principal ground which is relied upon by the defendant in this regard is the delay of the plaintiff in instituting these proceedings. He has known of the defendant's intentions since the time the planning permission was sought and obtained. He was told in January of the plaintiff's intention to proceed. He saw the development commence about the middle of March on his own admission. Yet he allowed the development to proceed before instituting these proceedings on the 2nd May. The plaintiff says that whilst he was aware of the works commencing in mid-March, 2002 he informed his solicitors on the 17th March, 2002 of such state of fact. He says however, that he could not have been sure that the work was necessarily that envisaged in the planning permission. He went to Spain to paint from the 4th April to the 26th April, 2002 and therefore was away for much of the month in respect of which the work was going on. When he returned from Spain he inspected the works on the 29th April and saw that the foundations had been poured. These proceedings were instituted a few days later. Whilst the proceedings were somewhat tardy, it does not appear to me that any particular inconvenience has been addressed in the evidence of the defendant in the event of an injunction being granted other than the obvious delay to the carrying out of the work. But there is no evidence of any specific damnification apart from that.

20.      In these circumstances I have come to the conclusion that the balance of convenience lies in favour of the grant rather than the refusal of the injunction. If I refuse it then the work on the house will be completed. If the plaintiff is ultimately successful then the house will have to be removed. In a sense that is detrimental to the defendant's interest. If on the other hand the injunction is granted it will hold up the completion of the work but I may ultimately be doing the defendant a service in that regard. If however, the defendant is successful at trial and an injunction is refused, then it seems to me that the undertaking as to damages which the plaintiff must give would be adequate compensation for the delay or any additional costs incurred by the holding up of the work.

21.      I am therefore going to grant the injunction sought but I am also going to certify the case as fit for early trial and I will give consequential directions as to the exchange of pleadings presently.