The Court of Appeal has dismissed an appeal by Galway Holding Company Limited, Danmar Construction Limited and Stephen and Maureen Treacy over a grass verge on Seamount Road, Malahide, finding they were not entitled to install a footpath across it.
The decision, delivered by Ms Justice Máire Whelan on 30 July 2021, leaves in place a High Court order requiring the appellants to restore the verge outside Thomas Condron’s property, reverse changes made to it and pay him €10,000 in trespass damages. The appeal judgment addresses the appeal against the High Court’s principal and costs judgments and order. It says the separate issues raised in Condron’s cross-appeal concerning costs would be dealt with after the appeal; it does not decide that cross-appeal.
The dispute followed work on 19 April 2016, when workers acting under a road-opening licence removed the grass verge, some cobble-lock paving and kerbing, and incorporated the area into a footpath serving the Seamount housing development. Condron claimed the verge was his property. The appellants argued that it formed part of a public road taken in charge by Fingal County Council.
The Court of Appeal held that the hedge-to-hedge presumption could apply, meaning the public way might extend from one boundary hedge to the other. But it found that the High Court was entitled to conclude that the presumption had been rebutted on the evidence. No witness testified to personally using the disputed verge as a public footway. The trial judge had also accepted evidence that it was uneven and obstructed by overgrowth, and that council maintenance was limited and sporadic.
The court considered a 2003 council letter stating that a 7.5-metre width of road was in charge. It said the letter had been discredited at trial, including by evidence from a former council engineer who rejected the measurement, and could not safely establish the status or extent of the disputed strip. A roads-schedule extract listed an average width of 15 feet, but had no accompanying map. The court stressed that Fingal County Council was not a party and that the judgment determined the private rights in dispute between these parties; it did not bind the council or members of the public.
The court dismissed the appeal. It also said planning permission and the road-opening licence did not themselves establish a public right of way or entitle the appellants to interfere with Condron’s property. It ordered the appellants to pay the appeal costs when ascertained, subject to any further written submissions on costs.