Judgment: 2017-06-20 · Court archive

Court of Appeal dismisses bid to establish right of way across former Oatfield factory site

The court upheld a High Court decision that access used by Ruth McKinney and visitors to Oatfield Bungalow was permissive, not a prescriptive right. The appeal was dismissed.

Court of Appeal ·

Who, what, where, when and why

Who
  • Zopitar Limited (Plaintiff)
  • Harold Jacob
  • Gerard Hogan (Judge)
  • Ruth McKinney (Defendant)
  • Ira McKinney
What

The court upheld a High Court decision that access used by Ruth McKinney and visitors to Oatfield Bungalow was permissive, not a prescriptive right. The appeal was dismissed.

Where

Places mentioned in the report

  • Oatfield Bungalow
  • de Valera Road
  • Letterkenny
When

Judgment:

Why

Reasons reported in the judgment

The dispute concerned access from de Valera Road across the factory yard to the rear of the bungalow. The High Court found that McKinney and her father, Ira McKinney, used that route after a new road and factory entrance were built in 1982. Visitors and service providers also used it, including oil lorries, gardeners and psychiatric nurses. The gates were open during factory working hours but locked at night and when the factory was not operational. When access was needed while they were locked, people asked factory staff to open them.

The Court of Appeal has dismissed an appeal seeking to establish a right of way across the former Oatfield sweet factory site in Letterkenny to Oatfield Bungalow.

The appeal was brought by Harold Jacob, administrator ad litem of the estate of Ruth McKinney, against Zopitar Limited. McKinney, who died in 2013, had claimed that a right of way had been acquired through long use of the factory premises.

The dispute concerned access from de Valera Road across the factory yard to the rear of the bungalow. The High Court found that McKinney and her father, Ira McKinney, used that route after a new road and factory entrance were built in 1982. Visitors and service providers also used it, including oil lorries, gardeners and psychiatric nurses. The gates were open during factory working hours but locked at night and when the factory was not operational. When access was needed while they were locked, people asked factory staff to open them.

The High Court ruled that the use was tolerated as a neighbourly arrangement and was not use “as of right”. The estate appealed. It argued that the use over more than 20 years met the requirements for acquiring a right by prescription.

In a judgment delivered on 20 June 2017, Mr Justice Gerard Hogan said the evidence showed consistent use, but that it remained permissive. He pointed to the reciprocal, informal arrangements between the adjoining properties, the factory gates being locked at certain times, requests to have them opened, and the absence of any assertion of a right when the company’s shares were sold in 1999.

The court also rejected an easement of necessity. Oatfield Bungalow had access from Ramelton Road, so the property was not landlocked or otherwise unusable. Less convenient access did not justify implying an easement of necessity.

The Court of Appeal concluded that the estate had not established a prescriptive right of way and dismissed the appeal. The judgment upheld the High Court’s decision; it did not grant a right of way across the factory premises.

Read the original court judgment

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