The High Court has refused Irene Walsh’s requests to stop access to three houses off Victoria Lane in Rathgar and to prevent the use of services beneath the lane. It also granted Promontoria (Aran) Limited’s counterclaim, declaring that Ms Walsh was estopped from denying rights of way and passage of services, and ordered those declarations registered against the folio for the lane.
The decision, delivered by Ms Justice Creedon on 1 June 2018, concerned three houses built on a site known as the Orchard and accessed via Victoria Lane. The houses were developed by Ms Walsh’s husband, Gerard Walsh, and his business partner, John Archibold. Promontoria held the interest of Ulster Bank, which had financed the development and held a mortgage over the site. Receivers were appointed in 2016 after demands for repayment.
Ms Walsh argued that the defendants had no rights over the lane, which she said she owned, and sought declarations and injunctions barring access and use of the services. She said she had agreed to allow services to be laid in return for compensation of up to €1.3 million from house-sale proceeds. Promontoria disputed her account and sought declarations recognising access and service rights for itself and the houses’ owners.
The court found that copies of deeds said to transfer the family home to Ms Walsh in 2005 were insufficient to establish an effective transfer. It was also not satisfied about the provenance of a handwritten copy of the alleged 2009 agreement, and did not accept that Ms Walsh had entered into it as she claimed. Because it found she lacked title to the lane in 2009, the court did not decide whether that alleged agreement was enforceable.
The court found that a 1923 deed granted an express right of way to the development site and that the benefit passed with the site’s 2006 purchase. It rejected Ms Walsh’s contention that the deed gave no right of way. However, the deed did not grant rights to services beneath the lane.
The court was satisfied that access had been used since at least 1994, but said there was not enough evidence to establish 20 years of continuous, uninterrupted use. It therefore did not recognise the right of way by prescription. Instead, it found that Ms Walsh’s representations and acquiescence had encouraged reliance by the developers, and held that she was estopped from denying access and service rights. The court also found that the services had been laid by February 2008, before Ms Walsh acquired ownership of the lane, and that she continued to benefit from them.
The court refused all seven forms of relief sought by Ms Walsh. It granted Promontoria’s counterclaim for declarations covering passage over the lane and passage of services beneath it, with both declarations to be registered as burdens on the lane’s folio.