The High Court has refused two landowners’ request for orders to stop trespass and remove a sewer pipe laid on their Wicklow land, leaving the dispute for trial. The court found that the owners had an arguable case that contractors trespassed when they entered the land and carried out works on 24 April 2023. It did not decide whether the works were ultimately lawful.
Mr Justice Rory Mulcahy ruled on 19 May 2023 that the owners had not shown a strong case likely to succeed, as required for an interim order compelling removal of the pipe and reinstatement of the land. He also found that the balance of convenience weighed against granting any of the orders sought.
The plaintiffs, Kieran Dowdall and Donal Spring, own land registered in Folio 21744F, County Wicklow. They said contractors for developers entered without consent, cleared vegetation, temporarily diverted a stream and installed a wastewater pipe beneath it. The pipe remained in place. The defendants accepted that the plaintiffs owned the land but argued it formed part of a public road taken in charge by Wicklow County Council. They said the works were carried out for Irish Water under statutory powers and with the Council’s consent.
The judge found that the evidence showed the Council considered the road to be public and taken in charge. However, the material before him did not include unequivocal evidence that the elected members had made the necessary formal order declaring the particular lands a public road. That gap left room for an arguable case that no declaration had been made, but the judge said the plaintiffs’ case was not strong enough for mandatory relief at this stage. The full evidence at trial might clarify the position.
The judge said the defendants could rely on the statutory provision allowing Irish Water, or a person acting on its behalf, to carry pipes under a public road. He was reluctant to decide whether landowner consent was also required without Irish Water as a party to the case. The plaintiffs had not joined Irish Water or the Council.
The court refused a prohibitory order because the defendants’ requested work was complete and there was no basis to expect them to re-enter the land. An order binding anyone on notice could also affect Irish Water and its agents, who had not been heard. The court said the plaintiffs would need to join Irish Water or bring separate proceedings if they sought to restrain its further works.
The judge considered the remaining pipe’s impact on the plaintiffs limited, while an injunction could affect completion and sale of nearly finished homes and the interests of buyers. He also noted that the plaintiffs had known the defendants’ position on the road’s status for two years and construction had progressed since early 2022. The application was refused in full; the underlying trespass dispute was not finally determined.