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Vincent & Beatty LLP recently appeared in the Court of Appeal on behalf of Thomas Condron (the “Respondent”), the owner and occupier of land situate at Seamount Road, Malahide, Co. Dublin (the “subject property”).

This matter concerned the High Court judgment of McDermott J delivered on 17 April 2018 in favour of the Respondent’s application seeking: –

1. an injunction restraining Galway Holding Company Limited and Danmar Construction Limited and Stephen Treacy and Maureen Treacy (the “Appellants”) from further interfering with the road-facing boundaries of the Respondent’s property,
2. an injunction directing the Appellants to restore the said boundaries to their former condition; and
3. damages for trespass on same.

Facts of the Case

The case centres around the Respondent’s claim that the lands abutting the black top surface of Seamount Road running alongside his property (the “disputed grass verge”) comprised part of the subject property either by way of deed of conveyance dated 21 April 1952 or alternatively, by way of a legal presumption that the ownership of land extends to the middle of the road abutting that property.

The Respondent claimed that since 1952 the grass verge abutting the road surface had always been treated by himself and his family members as their property and that no other party had lawfully entered upon it for the purpose of maintenance or otherwise

The Appellants obtained planning permission in May 2010 for the construction of 159 dwellings on the Seamount lands, subject to conditions including the obligation on the developer to execute works on the public road. The developer was also obliged, prior to the commencement of the development, to submit to and agree in writing with the planning authority, proposals for traffic calming measures, parking control measures and pedestrian crossings along the Seamount Road. No works by way of development in construction of dwellings were to take place pending the issue of the entrance/access way being addressed.

In April 2016 Fingal County Council proceeded to facilitate the Appellants with the installation of the footpath on the southern side of the Seamount Road (which abutted the Respondent’s property). This precipitated the application for interlocutory relief by the Respondent.

The Appellants submitted that the roadway at the subject property had been taken in charge by Fingal County Council from centre of hedge to centre of hedge for its entire length, and placed reliance on a letter sent to Mr Tracey in 2003 by an official in Fingal County Council (the “certificate”) as prima facie evidence that the roadway was in charge.

The High Court Ruling

Proceedings in the High Court ran for eleven days, with McDermott J ordering the Appellants to restore the disputed grass verge, and to reverse any changes which they had effected to same, and to pay the respondent €10,000 in damages for trespass. However, the High Court was of the view that the plaintiff ought to have brought his proceedings before the Circuit Court, and as such awarded costs on that basis only for the hearing.

Appeal

The Appellants filed a Notice of Appeal and initially identified twelve grounds, which was later refined to five discrete issues: –

1. whether the Respondent’s evidence of carrying out acts of maintenance of the grass verge and/or hedge was capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way;
2. whether the assertion of ownership by the Respondent in terms of installing kerbing/cobble-lock at the entrance to his property and the adjacent property, which was in the ownership of his sister, in the area of the grass verge was capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way;
3. whether (a) the evidence that maintenance by the Council of the hedge along Seamount Road was only sporadic and/or (b) the fact that evidence of their maintenance of the grass verge was minimal and non-existent for a period of eight years prior to the date of the hearing was capable of rebutting the hedge to hedge presumption;
4. whether there were certain matters of evidence which the High Court ought to have taken into account as supporting the view that a right of way existed over the grass verge or which tended to support the view that it had been taken in charge, but were not considered to be relevant and/or were not given any weight by the trial judge;
5. whether the court erred in law in failing to take into consideration the lack of credibility of the Respondent’s evidence particularly in the light of the failure to disclose significant matters in the context of the ex parte application brought by the Respondent for injunctive relief.

The Court of Appeal Judgment

Judgment was delivered by Whelan J on 30 July 2021 in favour of the Respondent.

In respect of the first issue the Court agreed with the trial judge that the evidence submitted on behalf of the Appellants in relation to the cutting of the hedge or maintenance of the grass verge was insufficient in itself to demonstrate that roads authority had taken the disputed grass verge in charge.

On the second issue the Court held that the installation of the kerbing and cobble lock was not determinative in and of itself of the issue. However, it was found that there was substantial other evidence in addition (to the installation of the kerbing and cobble lock) which when combined operated in their totality to rebut the hedge to hedge presumption.

In respect of the third issue the Court stated that the ‘very limited’ acts of maintenance contended could not in and of themselves establish a public right of way over the disputed grass verge by the local authority in circumstances where an imputed dedication and acceptance of the disputed portion of the grass verge as a right of way was not established.

On the fourth issue the Court held that it was bound by the findings of fact made by the trial judge when they were supported by credible evidence, and found that there was ‘ample cogent evidence’ before the trial judge which entitled him to find on the facts that the Respondent had rebutted the hedge to hedge presumption.

In respect of the fifth issue the Court found that the trial judge’s preferences of the Respondent’s witnesses on the key issues ought not to be interfered with in circumstances where his judgment engaged with the key elements of the case as advanced by both sides and provides reasoned conclusions whereby he preferred the Respondent’s and his witnesses’ evidence in relation to the central issues. The Court was guided by established case law, including the judgment of MacMenamin J. in Harlequin Property (SVG) Ltd v O’Halloran [2019] IESC 76 and the judgment of Clarke C.J. in Morrisey v Health Services Executive [2020] IESC 6.

Whelan J in her judgment gave a detailed consideration of the law regarding public rights of way, and cited two key common law presumptions:

1. usque ad medium filum viae; and
2. the “hedge-to-hedge” presumption

According to usque ad medium filum viae landowners adjoining a public highway are each presumed to have contributed a portion of the land to the formation of the highway. It is established law that a strip of land lying between the highway and the enclosed land adjoining it is presumed to also belong to the owner of that land. It is also presumed that the owner of the land adjoining a public right of way owns the highway ad medium filum viae up to the centre point of the highway. The Court relied upon Bland’s commentary in Highways (1^st ed. Roundhall, 2020) which described the cognate conveyancing presumption to usque ad medium filum viae which operated in favour of the landowner (i.e. the Respondent).

The Court also relied on Bland’s commentary in Highways to explain the hedge-to hedge presumption as:

Whelan J summarised that where it is contended that a public right of way over land has arisen under the doctrine of dedication and acceptance at common law, it will be generally presumed that, where a fence or hedge has been erected by the landowner in order to separate the lands enjoyed by him from the lands over which the public are exercising rights of way, the land between the hedge and the made up or metalled surface of the road has been dedicated to public use as a highway and accepted by the public as such. This was a rebuttable presumption, with the burden of proof shifting to the Respondent to demonstrate that dedication and acceptance of the disputed grass verge could be inferred in all the circumstances of the case.

The Court noted that it was a ‘significant and unusual fact’ that no witness was called on behalf of the Appellants to give evidence of having ever walked along the disputed grass verge for the purposes of using it as a footpath or way. This omission, the Court found, had the result that the imputed dedication of the disputed grass verge as part of a public right of way created at common law was not proven and the fundamental constituent element of acceptance by actual user by members of the public as a right of way was not proven in evidence.

The Court agreed with the trial judge that a “certificate” of the roads authority that the roadway in question constituted a public road could not be relied upon as it could not be verified or formally authenticated.

Significantly, the Court held there was no evidence that the disputed grass verge was ever actually part of or used as part of a public road in the first place. Therefore, the issue of extinguishment of a public right of way had no relevance whatsoever.

The Respondent rebutted the presumption that the entire width between the hedges was subject to a public right of way and was part of the public highway and had been taken in charge.

Costs of Hearing

The Court of Appeal later listed the issue of the costs’ order of the High Court, which was the subject of a cross appeal by the plaintiffs, in circumstances whereby although the High Court found in favour of the plaintiff, it was of the view that the case was one that was capable of being heard in the Circuit Court in the first instance, and thus only awarded costs on a Circuit Court basis.

The Court of Appeal, upon application of both the plaintiff and the defendants in January 2022, allowed the appeal of the plaintiff an awarded the costs of the High Court hearing to the plaintiff on the High Court scale, together with the costs of the Court of Appeal applications.

Conclusion

The Court dismissed the appeal and held that the Appellants were not entitled to install a footpath which incorporated the disputed grass verge.

The judgment is a significant ruling in reiterating the principle that an appellant court will only interfere with findings of fact in very limited circumstances.

The judgment also provides further clarity on the operation of the ‘hedge to hedge’ presumption.

For more information, please contact us at postmaster@vblaw.ie, or your usual contact at Vincent & Beatty LLP.