The Supreme Court dismissed an appeal by Van Morrison over proposed works to widen a shared driveway serving properties in Dalkey, finding that the High Court was right to conclude the works would breach restrictive covenants protecting neighbouring land.
In a judgment delivered on 13 October 2003, Mr Justice Geoghegan said the appeal concerned only whether the proposed works breached the covenants. The court did not decide whether planning permission was required, whether a wall was a party wall, or whether carrying out part of the works would interfere with the neighbouring owners’ property rights.
The respondents, Alphonsus and Claudia O’Mara, owned and occupied a house and grounds in Dalkey. Their purchase price in 1992 expressly attributed IR£120,000 to covenants and easements intended chiefly to protect their privacy. The covenants limited development on retained lands, including to specified works on three existing houses and the construction of two additional private houses subject to conditions.
The dispute arose after plans were sent in November 2001 to widen the lower stretch of the right of way to about five metres. The respondents’ architect raised concerns about the scale of the proposal, removal of vegetation, effects on security equipment and possible interference with the existing driveway. The High Court accepted evidence that excavation had begun on land owned by the appellant and that trees and shrubs about 20 feet high had been removed. It also accepted the respondents’ architect’s evidence that the proposed lower-driveway works could not be carried out without disturbing the respondents’ driveway.
The Supreme Court said the proposed works would substantially alter the nature of the driveway and its surroundings and fell outside the limited development permitted by the covenant. It noted that, on the lower section, the proposal involved adding the appellant’s strip of land to a driveway owned by the respondents, over which the appellant had a right of way.
An Bord Pleanála had refused planning permission after the local authority initially granted it. The Supreme Court said that refusal supported the view that the proposal substantially altered the driveway and its environs, but it did not decide the planning-permission question. It also declined to set broader rules for interpreting the covenants, limiting its decision to the works in this case.
The court dismissed the appeal. The judgment left discussion of whether the High Court order should be altered in light of the later planning refusal to counsel; it did not specify a revised order in the source text.