Use of factory land not a legal right of way

About this case:

• Judgment:
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The plaintiffs, known as Zopitar Limited, had sought a declaration that no right of way existed, following an attempt to sell the land to Lidl ltd., which fell through as a result of Lidl’s concerns of what appeared to be a right of way.

The defendant had originally been Ruth McKinney, who had lived in the cottage all her life. However, following her death, the case had been continued by Harold Jacob as administrator of her estate.

The defendant’s house and the factory premises were situated side by side, and over the years the defendant had crossed the factory land to reach her home, as had psychiatric nurses who came to visit her, oil lorries who found the other road to her home too narrow, and gardeners who found the factory land an easier way to access the garden.

The defendant and her father also had a copy of keys to the factory, but it appears they were in case of emergencies, and were never used to access the land.

This use had never been stopped or challenged, in part due to the defendant’s long family connection to the factory, which was originally owned by Zopitar’s predecessor company, William McKinney & Sons Limited.

The factory had been initially developed by the defendant’s grandfather, and her father, who had also lived in the cottage, had been a shareholder and for a time director and chairman of the company up until in or around 1997.

As of October 1997, Ruth McKinney also held significant shares in the company. Thus, the factory land was being used by a family with a significant role within the company.

In 1999, Donegal Creameries Plc bought into the company through a share purchase agreement. At this time, no mention of a right of way was mentioned, indeed, reference was made within the agreement to the lack of any such encumbrances.

The defendant therefore signed a document in which she sold her shares and warranted that there were no rights of way affecting the company’s property.

However, the defendant’s use of the land continued without objection, until a letter from Lidl in 2011 raised concerns over rights of way being exercised.

Council for the plaintiff argued that this did not amount to a legal right of way, that such a right had never been asserted by the defendant, and when given a chance to legally avow such a right in the 1999 shares purchase agreement, the defendant had not done so.

However, counsel for the defendant, Mr. Smyth, submitted that for upwards of 30 years, Ruth McKinney, and her predecessor-in-title, Ira McKinney, as occupiers of Oatfield Bungalow, exercised regular use and enjoyed the rights-of-way and exercised same without secrecy, without permission, without interruption, without force, and as of right, and that at all material times it was the defendant’s intention to use the said rights-of-way for the purpose of gaining access to her property.

Delivering the judgment, Mr Justice Gilligan first examined the law on rights of way.

Under the Prescription Act 1832, the defendant must show continuous use for 20 years, in this case, the period between 1991 and 2011. It was noted that the defendant’s father was the owner of the cottage until 1999, and the defendant the owner from that period until 2011.

It was noted that in order for the right to exist, there must be a dominant and servient tenement, that the two properties must be linked, that the right must benefit the land itself and not merely the owner in a personal capacity, and that the under Section 5 of thePrescription (Ireland) Act 1858 the user must be as of right, without force, secrecy, and without oral or written consent of the servient owner.

The Judge noted that this fell to the particular facts, and cited a number of cases exploring whether an access is being exercised as a right, including Orwell Park Management Limited v Martin Henihan and Rachel Henihan 5 JIC 1409; Walsh v. Sligo County Council IESC 48; and Walker v. Lenoach IEHC 24.

The Judge noted that it was relevant to this case to consider whether the factory gates could be locked at will against the defendant, citing R (Beresford) v Sunderland City Council 3 W.L.R. 1306; Barry v. Lowry 11 I.R. CL; Green v. Ashco Horticulturalist Ltd 2 All ER 232; Flynn v. Harte 2 I.R. 322; and Donnelly v Adams, 1 I.R. 154 as demonstrating how this could defeat claims to a right of way.

In relation to the share purchase agreement in 1999, the Judge noted that it had been argued that she did not fully know what she was signing, that she had received legal advice only from a lawyer with a vested interest in the transaction, and had not intended to deny her right of way.

However, the Judge cited the case of IRBC v. Quinn IEHC 470, which found that it was not a sufficient defence to not have adequately read or understood a document.

Concluding, the judge found that there was no great dispute as to the history of the use of the factory premises.

Instead, what is in dispute is whether, on the particular facts of this case, the proven use can be characterised “as of right”.

The Judge noted that: “This must be determined taking into account the relationship between the McKinneys and the plaintiff company, the existence of the locked factory gates outside of office hours and at weekends, of which they had two sets of keys which they never used, and the signing by Ruth McKinney of the share sale and purchase agreement in 1999 for a substantial amount of money at the time, and on the basis of certain warranties given by her to the purchaser on which they relied.”

Noting that the defendant’s father long standing role within the company, the Judge found that there was no indication that on the balance of probabilities he ever intended to set up a right of way that would burden the family company.

As his use of access could not be characterised as the assertion of an adverse legal right, “the defendant does not have twenty years continuous user and thus, it would appear that on this basis alone, a lawful enforceable right of way has not been established”.

Further: “Even if the actions of Ira McKinney are to be taken into account and the defendant can rely on them in addition to her own user, the reality is that the user was tolerated and any number of opportunities to express an assertion of a right of way across the factory premises were, firstly, never made and, secondly, on occasions when they could have been made in legal format the opportunity was never availed of.”

In relation to the shares purchase agreement, it appeared that no one had given thought to their being a right of way. No claim had ever been made, and the issue had never been raised prior to 2011.

Thus, the access could not be characterised as setting up a legal, adverse, right of way as against the plaintiff.