The High Court found that works to install a footpath along Seamount Road, Malahide, trespassed on land belonging to Thomas Condron. It directed the defendants to restore the disturbed area to its previous state and awarded Mr Condron €10,000 in general damages for trespass. The judge said counsel would be heard on the terms of the order to issue.
Mr Condron had sought injunctions to stop further interference with the road-facing boundaries of his property and require restoration of the grass verge, along with damages. The dispute concerned whether the verge between the road’s tarmac surface and the hedge beside his property formed part of the public road taken in charge by Fingal County Council.
The defendants relied in part on a 2003 council letter stating that a 7.5-metre width of Seamount Road was in charge. The judge found the council evidence about how that figure was reached unsatisfactory. A separate extract from 1930 and 1952 road schedules listed the road’s average width as 15 feet, about 4.6 metres. The court accepted that the road authority had taken a road of that average width in charge, but found the evidence did not establish that the grass verge beside Mr Condron’s property was included.
The judge considered the presumption that a public road may extend across the space between hedges. In this case, he found that presumption was rebutted by evidence of Mr Condron’s control of the verge, including installing kerbing, occasionally cutting the grass and asserting his property interest during the planning process. The court was not satisfied that the public had used the verge as a footway as a matter of right.
The court heard that the defendants’ agents dug up the verge and installed a concrete footpath after the council granted a road-opening licence on 16 April 2016. The judge found the defendants trespassed despite having council support. He also awarded damages for disruption to Mr Condron’s enjoyment and possession of his property, and for inconvenience and upset, including disruption to access to his home during the works.
The judgment did not set out the final wording of the restoration order. The judge left its terms to be addressed by counsel.