The High Court awarded Dwyer Nolan Developments Limited €100,000 in damages after finding that Kingscroft Developments Limited had substantially interfered with the plaintiff’s right of access to retained lands. The court also said the existing declaration should be expanded to allow an application to build a hard-surfaced road, subject to planning permission.
The dispute followed a 1994 sale of adjoining lands. A 1993 planning permission had shown an estate road extending to the boundary of the lands kept by Dwyer Nolan. Kingscroft later obtained permission for a revised layout, and the road, known in the proceedings as road 14, did not reach that boundary.
In 1998, the court found that the plaintiff was entitled to a right of way and adjourned the matter to allow a solution to be pursued. In 2001, it declared a right of reasonable access over an area intended to extend road 14, while leaving damages and related matters for later determination. The present judgment addressed whether damages were due and how they should be measured.
The court noted that two applications by Kingscroft to extend road 14 had been refused, including on appeal, because the proposed road was premature without a layout for the area it would serve. Dwyer Nolan had not applied for planning permission to develop its retained lands, and had not joined in the dual planning applications suggested by Kingscroft’s solicitors in 2000.
By the time of this judgment, the estate roads had been taken in charge by the local authority. A strip remained available for a possible road extension, but it was landscaped rather than surfaced. The court found it could serve pedestrians and possibly some off-road vehicles, but not ordinary vehicular traffic without planning permission. That restriction amounted to substantial interference with the declared access right and constituted an actionable nuisance.
The court rejected the plaintiff’s valuation, which treated the lands’ value without access as effectively nil, and the defendant’s higher valuation figures. It said the evidence did not establish that development access through the estate would be approved. The plaintiff’s failure to participate in dual planning applications meant the court could not assume that the lands could not be developed with access over the extension area. The court also said there was no failure to mitigate merely because the plaintiff had not tried to negotiate access through the neighbouring Bray Business Park.
The court concluded that damages were payable but that the valuation evidence did not address the relevant question. It assessed damages at €100,000. The judgment said the declaration should be expanded to let the plaintiff apply, with the road-area owner’s consent deemed given, to construct a hard-surfaced road, subject to obtaining planning permission.