The Circuit Court has declared that Robert and Patricia Barker are entitled to use the registered right of way across their neighbour’s Malahide property as a vehicular access to their home. It also ordered the Property Registration Authority to correct the mapped width of the route.
In a judgment delivered on 10 May 2024, Judge Jennifer O’Brien said the wording of the right of way, as recorded on the defendant’s folio, clearly included vehicular access. The court rejected John Shuttleworth’s argument that the route was limited to pedestrians or vehicles of a particular width.
The dispute concerns the route between 2 and 3 Woodlawn, Dublin Road, Malahide. The Barkers said it was the only vehicular access to their property and that their family had used it for that purpose since acquiring the home in or about 1992. Shuttleworth argued that the right of way was a narrow pedestrian path, and that vehicle use interfered with his parking and damaged his driveway.
The court relied on the registered wording, which expressly referred to passage “with or without animals or vehicles”, and on evidence of longstanding vehicle access. It accepted the Barkers’ survey evidence that the route measured between 2.4 and 3 metres wide, and noted that Shuttleworth’s surveyor had not independently measured the physical features shown in that survey. The judge also rejected Shuttleworth’s evidence that the route had been only a sheep path and did not accept that historic vehicle access had occurred only with special permission.
The court also rejected the defendant’s arguments that the right had expired or been extinguished when ownership of the properties came together. It noted that the right remained registered as a burden, that later conveyances and a maintenance agreement proceeded on its basis, and that cancelling it would leave the Barkers’ property landlocked.
The court declared the route a vehicular right of way in accordance with survey drawing HS-2. It ordered the Authority to correct the yellow marking on the defendant’s folio, fixing the route’s width by reference to two timber posts and the line between them; the drawing is to be attached to the court order. The judge said the parties should address the precise form of the mapping order.
Permanent orders were granted preventing Shuttleworth, his agents or others acting with him from obstructing the Barkers’ use of the route for vehicle access. The court referred to Shuttleworth’s maintenance obligations under the agreement when considering his damage claim. The judgment left damages and costs for the parties to address.