The Circuit Court has affirmed a decision allowing Raymond and Claire Nardone to acquire the fee simple interest in a property at Inglewood, Mill Lane, Leixlip, Co Kildare, despite foundations and partial rising walls having been built for four planned homes on the land.
Judge Michael White delivered the judgment on 13 July 2009 in an appeal by Maureen Chaloner Smith against a decision made by Registrar of Titles Brigid McCaffrey, acting as arbitrator, on 5 June 2007. The appeal concerned whether the property met the statutory conditions for acquisition of the fee simple, including whether the relevant land was subsidiary and ancillary to permanent buildings.
The property was held under a 1972 fee farm grant that required a bungalow and restricted further building or alterations without the grantor’s written consent. Chaloner Smith was the grantor’s successor in title. The Nardones acquired the property in 2000. An Bord Pleanála granted planning permission for four dormer homes, and construction began on 9 April 2005. The Nardones had not obtained consent under the grant. Work stopped in May 2005 after Claire Nardone learned of the covenant from her solicitors.
The court found that trenches and concrete foundations had been laid for all four homes, with concrete blocks built to no more than a metre. The floor slabs were never poured. After construction stopped, the contractor backfilled the foundations and made the site safe. The court accepted evidence that the Nardones began restoring the area as garden in 2006, bringing in and spreading soil and gravel. By the date of the acquisition notice, 20 October 2006, the foundations and rising walls were covered with topsoil, although the reinstatement was not complete.
Chaloner Smith argued that the foundations were permanent buildings and that the land could not qualify as ancillary to the bungalow. She also argued that the arbitrator should not have considered evidence about later restoration. The court held that the arbitrator could examine the actual condition of the land when deciding the application. It assessed the relevant condition at the notice date and found that substantial restoration work had already taken place by then.
The court concluded that the area was ancillary and subsidiary to the main dwellinghouse on 20 October 2006. It also found that a steel shed used to store garden and household materials was ancillary to the dwellinghouse. The court affirmed the arbitrator’s order and directed that the Nardones were entitled to acquire the fee simple in the property extent shown on the map attached to the 1972 grant.