Court grants declaration for vehicular right of way and orders correction of property map boundaries.

Record No: 04186/ 2022 Neutral Citation: [2024] IECC 3

THE CIRCUIT COURT

AN CHÚIRT CHUARDA

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

ROBERT BARKER AND PATRICIA BARKER

Plaintiffs

and

JOHN SHUTTLEWORTH

Defendant

Judgment of Her Honour Judge Jennifer O’Brien delivered this 10th day of May 2024

Background: The plaintiffs, Robert and Patricia Barker are the registered owners of 3 Woodlawn, Dublin Road, Malahide, County Dublin which property is registered on Folio 73505F County Dublin (known as “3 Woodlawn”). The defendant John Shuttleworth is the registered owner of the adjoining property known as 2 Woodlawn, Dublin Road, Malahide, County Dublin, which property is registered on Folio 11077F County Dublin (known as “2 Woodlawn”). It is submitted by the plaintiffs, that the only vehicular access to their property at

3 Woodlawn is by Right of Way “tinted yellow” registered on 16 March 1979 as a burden at entry number two on part three of the defendant’s Folio 11077 F County Dublin. The plaintiff submits that this Right of Way has its origins in an express grant dated 16 February 1979, from Eileen Francis Talbot and Phoebe Talbot to Emily Goold, contained in instrument number R2799/79 (“Right of Way”). This Right of Way traverses the defendant’s property at 2 Woodlawn.

The Right of Way provides: “Full right and liberty for the registered owner of Folio 11078F her heirs and assigns and her and their licensees at all times and for all purposes to pass and repass on foot and with or without animals or vehicles over the part of the property herein by the way shown tinted yellow and lettered VW on the map thereof.” There is no lettering VW appearing on the map attached to Folio 11077F County Dublin. The narrative to the Right of Way registered as a burden of entry number 2 on Folio 11077F County Dublin further provides:

“The description of the land affected by the above right is as set out on the registry map RM. In the event that the above entry includes lettering or other alpha numeric references as part of the description of the subject lands, where such lettering or alpha numeric references are not now shown on the registry map, the description on the registry map prevails and is deemed to be the description of the affected property for the purposes of the Registration of Deeds and Title Acts 1964 and 2006.” The Right of Way is in favour of the registered owner of Folio 11078F County Dublin.

The plaintiffs submit that it is further apparent from entry number 2 on Part 1(A) of Folio 73505F County Dublin, the plaintiff’s folio, that is the folio for 3 Woodlawn, derives from Folio 11078F County Dublin, and therefore as a matter of title the plaintiffs are entitled to the benefit of the Right of Way registered as a burden on the defendant’s folio. In these proceedings the plaintiffs seek, inter alia, as against the defendant, permanent orders in effect preventing the defendant, his servants or agents, or any party acting in consort with him, obstructing or preventing the plaintiffs using the Right of Way as a vehicular access to their property at 3 Woodlawn, and damages for wrongful interference in respect of same.

The proceedings commenced by way of notice of motion dated 15 December 2022, seeking various interlocutory orders pending the trial of the substantive action, restraining the defendant, his servants or agents or any persons having notice of the orders from obstructing and or interfering with the Right of Way. The interlocutory proceedings were adjourned from time to time to facilitate affidavit evidence on the basis of the defendant’s undertaking given on 11 January 2023 not to obstruct the vehicular access by the plaintiffs or their tenants to 3 Woodlawn, pending determination of these proceedings.

The defendant claims in his defence and counterclaim delivered on 1 November 2023 inter alia, the Right of Way is a pedestrian Right of Way only, and therefore the plaintiffs are not entitled to use it as a vehicular access to their property at 3 Woodlawn. Such usage by the plaintiffs, the defendant asserts, is preventing him from parking his car/ motor vehicle on his own property at 2 Woodlawn. The plaintiffs, as a matter of title in support of their contention that a Right of Way includes a vehicular Right of Way rely on the Documents of Title set out in the Booklet of Title comprising the folio and file plan for 73505F County Dublin, the folio and file plan 11077F County Dublin, instrument number R2799/79 with map, registered as a burden at entry number 2 on part three of the defendant’s Folio 11077F County Dublin; the contract of sale dated 20 October 1992 between Alan Black and Maureen Black to George and Irene Barker, the maintenance agreement dated 31 December 1990, Eileen Talbot to Brian Fahey and others, and the maintenance agreement dated 15 December 1992 to Ruby Shuttleworth to Adam Black and Maureen Black (otherwise O'Connor).

The defendant, in the course of the hearing significantly based his position on the claimed “width” of the Right of Way, which the defendant said could only present as a pedestrian Right of Way. Mr. Michael O’Malley provided an expert report on behalf of the defendant that as a matter of “width,” there is insufficient space for a standard four-wheel motor vehicle to safely pass across the defendant’s property at 2 Woodlawn to the plaintiff’s property at 3 Woodlawn. Mr. O’Malley stated in his report dated 28 November 2023 “The registered Right of Way is too narrow as shown on the map attached to Grant of Right of Way dated 16 February 1974 and marked VW.” Counsel for the plaintiff refers to a typographical error in that the instrument is dated 16 February 1979 and not 1974.

The defendant gave historical evidence at the hearing that at the time of the Grant of Right of Way in 1979, it presented as a “walkway” or a sheep’s path only. In addition, the defendant contends that the imposition on him of the Right of Way as a vehicular Right of Way effectively prevents him from parking his car/ motor vehicle at his own property, 2 Woodlawn. The defendant also contends that the use of the Right of Way as a vehicular Right of Way is causing ongoing damage to the front of his property comprising the driveway at 2 Woodlawn.

Submissions made on behalf of the plaintiff:

1. Section 31(1) of the Registration of Title Act 1964 provides that the Register shall be conclusive evidence of the title of the owner of the land as appearing on the Register and of any “right, privilege, appurtenance or burden as appearing thereon”. It is submitted that the legislative intent behind Section 31(1) is to build up the “Iron Curtain” of the Register behind which it is not necessary to penetrate. Reference is made to the case Stepstone Mortgage Funding Ltd v Mary Tyrrell [2012] IEHC139. It is further submitted that the effect of registration of an easement or profit is to make it a legal interest in the land enforceable against all owners of the land as long as it remains on the Register. Reference is made to Byrnes & Neylon v Meakstown Construction Ltd [2009] IEHC123 per McGovern J at page 17.

2. It is further submitted that on registration of a person as full owner of freehold land with an absolute title, the estate in fee simple in the land, together with all implied or express rights, privileges and appurtenances belonging or appurtenant to, vests in the person so registered. Reference is made to Section 37 (1) of the 1964 Act, such that the estate of the registered owner is thereafter subject to the Burdens, if any, registered as affecting the land.

3. The plaintiff also refers to interpretation of a Right of Way by express grant or reservation, the extent of the Right of Way so created is determined as a matter of construction of the words in the instrument. The plaintiffs refer to Barton J in Gogarty v Hoskins [1906] 1 IR 173 at 184: “There is no hard and fast rule in cases of this kind. Every case turns upon the true construction of the particular deed in question.”

4. The plaintiff also relies on the decision of Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and submitted that sometimes it would be appropriate in circumstances to go beyond the actual words used in the document so as to interpret them in the light of the factual matrix which existed at the time when the contract was made. In that case Lord Hoffman laid down the five principles for this investigation should that wording be unclear or ambiguous. It was submitted that one should only consider the surrounding circumstances where the wording is unclear or ambiguous within the document itself, this was affirmed by the English Court of Appeal in St.

Edmundsbury and Ipswich v Clark (No. 2) [1975] 1 All ER 772 at 779, Sarah John Pennycuick J stating as follows: “First, what is the proper approach on the construction of a conveyance containing the reservation of a right of way? We feel no doubt that the proper approach is that on which the Court construes all documents; that is to say, one must construe the document according to the natural meaning where it's contained in the document, as a whole, read in the light of surrounding circumstance... of course, one may have words so unambiguous that no surrounding circumstances could affect their construction.” With regard to the Land Registry maps, it is submitted by the plaintiff that while the register is conclusive as to title, as provided by Section 31(1) of the 1964 Act, the Land Registry map is not conclusive as to boundaries or extent unless a note to that effect appears on the register.

Reference is made to Section 85(2) of the 1964 Act, as substituted by Section 62 of the Registration of Deeds and Title Acts 2006, and or 9(2) of the Land Registry Rules 2012. It is submitted on behalf of the plaintiff that Section 32(1) (c) of the 1964 Act as substituted by Section 55 of the 2006 Act provides where an error originating in the Land Registry, whether of misstatement, misdescription, omission or otherwise and whether in a Register or Registry map, occurs in registration, that the Court, is of the opinion that the error can be rectified without injustice to any person, may order that error be rectified upon such terms as to costs or otherwise as it thinks fit.

The appropriate form of order will depend on the nature of the error which has been made. Reference is made to the High Court in Stepstone Mortgage Funding Ltd v Mary Tyrrell [2012] IEHC139, which involved an order against the Authority to reinstate appurtenant rights on a folio which it had cancelled without notice to all interested parties. It is submitted on behalf of the plaintiff with regard to the width of the Right of Way, that same is normally specified in the deed or in the plan. It is further submitted that if the width of the Right of Way is not so expressed, then extrinsic evidence may establish the physical extent of the Right of Way described in the deed, as at the date of the grants.

It is further submitted that where a grant is unambiguous in its wording, the circumstances at the date of the grant will not affect its extent. Reference is made to Bulstrode v Lambert [1953] 2 All E.R. 728. It is submitted that in that case, the physical circumstances at the time of the grant failed to cut down the width as indicated by the words in the grant. There existed, at the time of the grant, gates of 6 feet in width, with an overhead bar at the entrance to the Right of Way on the servient tenant. These structures would have obstructed large vehicles.

The Right of Way itself was 11 feet wide, and the right was expressed to be with or without vehicle. Most importantly, the grant was for the purpose of access to an auction mart, which purpose it held must involve the bringing of goods to and from the mart. In those circumstances, the use of the Right of Way was held not to be restricted to private vehicles, despite the physical limitations at the time of the grant, but rather extended to larger commercial vehicles.

Reference was also made by the plaintiff’s counsel to Keefe v Amor [1965] 1 QB 334 where the dominant owner widened the gateway that had been too narrow to admit vehicles. The fact that the right of way with vehicles could not be exercised at the time of the Grant was held not to contradict or limit the scope of the Grant.

It is submitted that the Plaintiffs are entitled pursuant to Section 31(1) of the 1964 Act to rely on the conclusivity of the Register which the Court is not required to go behind, and any invitation by the Defendant in this regard to do so, in the absence of proving fraud, should be refused.

It is submitted that the Defendant is not entitled to go behind the Register as he has sought to do in asserting the maps are in error, particularly at this late remove, some 44 years after the 1979 Grant, in the absence of proving actual fraud.

It is further submitted that where the Right of Way has been created by express Grant, as in this instance, the 1979 Grant, the extent of the Right of Way created is determined as a matter of construction of the words in the Instrument itself. (See Barton J. in Gogarty v Hoskins, [1906] 1 I.R. 173 at 184).

It is submitted that although the width of the Right of Way is not specified in the 1979 Grant, where the Grant itself is unambiguous in its wording, the circumstances as of the date of the Grant does not affect its extent. Counsel for the plaintiffs outlined that the Defendant sought to introduce evidence through the Defendant himself as to the circumstances at the date of the 1979 Grant (which was not admitted by the Plaintiffs) to assert that the Right of Way was a walkway only, despite its clear and unambiguous wording. It is submitted that this is a misconceived argument in the context of the unambiguous wording of the 1979 Grant which specifically references “vehicles” and which language was maintained when the 1979 Grant was registered as a Burden on the Defendant’s Folio 11077F Co. Dublin.

It is posited that even if the physical circumstances as alleged by the Defendant at the time of the 1979 Grant could be proved, such physical circumstances could not be used to defeat the specific unambiguous wording of the Right of Way. See Bulstrode v Lambert, (1953) 2 All ER, 728. See also Keefe v Amor [1965] 1 QB, 334.

The evidence of the Plaintiffs was the Right of Way was vehicular and presented as the only vehicular access to their property at 3 Woodlawn. This had always been the position, without objection since the property was acquired by Mr. Robert Barker’s late parents in or about 1992.

The Plaintiffs gave evidence the Right of Way, as the vehicular access to 3 Woodlawn had never been objected to by the Defendant, or his predecessors in title, until relations deteriorated in or about May 2022. Such deterioration occurred where the Defendant was carrying out various building works to 2 Woodlawn during the course of which he had restricted the usage of the Right of Way with trailers and other building materials. Initially, the Plaintiffs conceded in evidence, these obstructions were with their agreement, but subsequently this agreement was withdrawn when the building works showed no sign of nearing completion. It was in that context when, for the first time, the Defendant asserted the Right of Way was restricted to a pedestrian Right of Way only and did not incorporate vehicular access.

The Defendant, both in his evidence, and that of his Expert, Mr. O’ Malley, has sought, in support of his position that the Right of Way is pedestrian only, to rely significantly on the width of the Right of Way further to the Map attached to the 1979 Grant, and the width of the colouring “tinted yellow”, registered as a Burden at Entry No. 2, Part 3 on the Defendant’s Folio 11077F Co. Dublin. The Defendant has argued the narrow widths represented in this mapping demonstrate that the Right of Way was never intended to be, and was not, a vehicular Right of Way. This despite the very specific wording both in the 1979 Grant and the wording of the Burden at Entry No. 2 on the Defendant’s Folio 11077F Co. Dublin, both unambiguously referring to “vehicles”.

Pursuant to Section 85(2) of the 1964 Act as substituted by Section 62 of the 2006 Act, maps are not conclusive proof of boundaries, or more importantly, in this instance, the width of the Right of Way. Both the Plaintiffs Folio 73505F and the Defendant’s Folio 11077F Co. Dublin contain Entries reflective of the Statutory position, both Folios stating, inter alia: -

“Notes:

1. Filed plans should be read in conjunction with the Register. The description of the land in the Register or on the filed plan is not conclusive as to the boundaries or extent of the land (see Section 85 of the Registration of Title Act 1964, as substituted by Section 62 of the Registration of Deeds and Title Act, 2006)”

And later appearing on the file plans themselves in bold red lettering:

“The registry operates a non-conclusive boundary system.

The Registry Map identifies properties not boundaries meaning neither the description of land in a register nor its identification by reference to a registry map is conclusive as to the boundaries or extent (see Section 85 of the Registration of Title Act, 1964 as inserted by Section 62 of the Registration of Deed and Title Act 2006)”.

Counsel for the plaintiff submits that this is nothing new and has been accepted since the inception of the Land Registry system (often referred to as the “General Boundaries Rule”). This Rule provides that unless there is a specific Entry on the Folio stating the boundary has been conclusively defined, then in any other case where the boundary has not been so stated, evidence other than the Register or Registry Map is admissible to determine the correct boundary and extent of the land. That is, the physical features “on the ground.”

In this regard, the Plaintiffs relied heavily on the Expert evidence of Mr. Adrian Sweeny, (Geomatics) Surveyor (hereinafter referred to as “Mr. Sweeny”) who had conducted a land survey of both the Plaintiffs property at 3 Woodlawn and the front portion of the Defendant’s property at 2 Woodlawn, on 5th July 2023. The purpose of this survey, as set out by Mr. Sweeny in his report dated 30th January 2024 and given in evidence at the Hearing, was to record the current location of the physical site features as they existed on the day of the survey. This was considered in the context of a review and mapping of the Right of Way by Mr. Sweeny over the front portion of the Defendant’s property, 2 Woodlawn.

Mr. Sweeny’s Ground Truth Survey (hereinafter abbreviated to “GTS”) drawing identified as “HS-1” (hereinafter referred to as “HS-1”) referenced the positioning of Timber Postings marked “Timber Post “1”” and “Timber Post “2”” which the Plaintiffs stated in their evidence represented the width of the entry to the Right of Way at 2 Woodlawn marked by Mr. Sweeny as “A” and its exit to their property at 3 Woodlawn marked “B” . “HS-1” also identified the “Stone Chip Driveway” between the two points “A” and “B”. The Plaintiffs stated in their evidence, this “Stone Chip Driveway” between points “A” and “B” represented their vehicular access to 3 Woodlawn. This positioning of the vehicular access to 3 Woodlawn, as appearing on the ground, was further emphasized in Mr. Sweeny’s further GTS Drawing identified as “HS-2” (hereinafter referred to as “HS-2”) marked as “Timber Post “1”” and “Timber Post “2”” which GTS Drawing included measurements of the width of the Right of Way between the points “A” and “B” as ascertained by reference to the physical markers on the ground. In particular, the Timber Postings, and the “Low Wall & Timber Fence” identified as abutting 4 Woodlawn. The GTS Drawing “HS-2” measured the entry to the Right of Way at 2 Woodlawn marked “A” at “Timber Post “1”” as 3 metres (9 feet 10 inches), with an identical measurement at “Timber Post “2”” representing the exit of the Right of Way to the Plaintiffs property at 3 Woodlawn marked “B” at 3 metres (9 feet 10 inches). Mr. Sweeny also completed a measurement of the Right of Way at its most narrow point at 2.4 metres (7 feet 11 inches). All of these measurements were made by reference to the physical markers on the ground identified in the GTS Drawings at “HS-1” and “HS-2” as hereinbefore referred. Mr. Sweeny further imposed into “HS-2”, coloured “blue” and “pink”, vehicles of the type referred by both the Plaintiffs and the Defendant, to illustrate a vehicle could pass through the Right of Way using the broken “green” line as representing a straight line joining the “Timber Post “1”” and “Timber Post “2””. Accordingly, Mr. Sweeny’s evidence was that a vehicle could pass through the Right of Way whilst another vehicle is parked at 2 Woodlawn.

Mr. O’Malley, the Defendant’s Surveyor conceded under cross-examination he had not conducted an actual land survey recording the physical site features as they existed on the ground and referred by Mr. Sweeny in GTS Drawings “HS-1” and “HS-2” nor had he made any measurements referenced by Mr. Sweeny in his Report and GTS Drawings “HS-1” and “HS-2”. In that circumstance, under cross-examination, Mr. O’Malley accepted the measurements and recording of the physical features on the ground as demonstrated by Mr. Sweeny on the said GTS Drawings “HS-1” and “HS-2” appeared to be correct, following his own inspection of the location.

In addition to a survey of the physical site features, Mr. Sweeny also conducted some research as to what may have been the historical position with reference to the Right of Way. Mr. Sweeny did this by way of “Google” Aerial View Imaging from May 2008, May 2009, July 2013, June 2016, May 2017, June 2018, May 2020, April 2021, and June 2022. The Plaintiffs in evidence acknowledged that this “Google” Aerial View Imaging presented as an accurate representation of their recollection of the configuration of the Right of Way as it physically existed on the ground at those requisite periods. The imaging demonstrated a tarmacadam driveway between the points “A” and “B” referred in Mr. Sweeny’s GTS Drawings “HS-1” and “HS-2” certainly since 2009, with the nature of the driveway changing to a sandy coloured stone chip effect, perhaps in or around 2018.

Mr. Sweeny attempted to overlay the historic “Google” Aerial View Imaging from 2013 and 2018 in his GTS & Approximate Overlay of 2013 “Google” Aerial View Drawing identified as “HS-3” (hereinafter referred to as “HS-3”) and his GTS & Approximate Overlay of 2018 “Google” Aerial View Drawing identified as “HS-4” (hereinafter referred to as “HS-4”).

Referencing “HS-3” Mr. Sweeny gave evidence he had completed a measurement from the overlay of the 2013 “Google” Aerial View Imaging of the tarmacadam driveway identified and which overlay represented the tarmacadam driveway of approximately the same widths as currently existed on the ground by reference to the current Timber Postings: “Timber Post “1”” and “Timber Post “2””, that is, 2.8 metres (9 feet 4 inches) at the entry to the Right of Way marked “A”, but with an expanded point at its narrowest of 2.5 metres (8 feet, 3 inches) in 2013, as opposed to the current position on the ground, where the width at its narrowest point on the Right of Way measures 2.4 metres (7 feet, 11 inches).

In their evidence the Plaintiffs verified, formerly by way of the tarmacadam driveway, identified by “HS-3” and subsequently the sandy coloured Stone Chip driveway identified by “HS-4”, represented the vehicular Right of Way, and which Right of Way was the only way vehicles could access 3 Woodlawn. The Plaintiffs recollection is supported by historical “Google” Aerial View Imaging, including its overlay of the “Google” Aerial View Imaging from 2013 and 2018 as demonstrated by Mr Sweeny in “HS-3” and “HS-4”. In that context, the Plaintiffs evidence was the parking of vehicles at 3 Woodlawn, for example, identified in the “Google” Aerial View Imaging – July 2013 (Fig. 5) and “Google” Aerial View Imaging June 2016 (Fig. 6) could only have been achieved by using the Right of Way as a vehicular Right of Way, there never having been any other vehicular access to 3 Woodlawn.

Further, the Plaintiffs, referring to the “Google” Street View March 2009 (Fig. 1) and November 2022 (Fig. 2) Imaging respectively, at Page 4 in Mr. Sweeny’s Report, was verified by them as representing the physical width of the Right of Way in terms of vehicular access to

3 Woodlawn as identified by the physical markings appearing thereon. The Plaintiff’s gave evidence in terms of the physical width of the Right of Way, the White Wall in “Google” Street View March 2009 (Fig. 1) Imaging was in the same location as the current Wooden Postings, “Timber Post “1”” in “HS-1” and “HS-2” at the entry to the Right of Way to 2 Woodlawn, marked “A” on the said GTS Drawings, which “Timber Post “1”” was as demonstrated in the “Google” Street View November 2022 (Fig. 2) Imaging. It was this Timber Posting, marked as “Timber Post “1”” that Mr. Sweeny identified in his evidence as the physical marker on the ground, used as the reference point to measure the entry to the Right of Way at “A” in GTS Drawings “HS-1” and measured in “HS-2” as 3 metres (9ft 10ins). Further, the Plaintiffs gave evidence, it was these physical markings, formerly the White Wall, and subsequently the Timber Postings which they used to physically mark the Right of Way, when entering or exiting with vehicles.

That the Right of Way could only be a vehicular Right of Way and not limited to a pedestrian Right of Way, it is submitted the Maintenance Agreement dated 15th December 1992, and made between Ruby B. Shuttleworth, the Defendant’s late Mother and predecessor in title of the one part and Alan Black and Maureen Black (otherwise O’Connor) of the other part, is probative. Clauses A, B, C and D could only be relevant in the context of a vehicular Right of Way. Both the Plaintiffs and the Defendant accepted in his/her/their evidence the existence of this Agreement, with the Defendant conceding under cross-examination he had never made a demand pursuant to the Maintenance Agreement, not having the requisite vouchers pursuant to Clause C. The Plaintiffs on the other hand had confirmed in evidence they would have honoured the provisions of the Maintenance Agreement had any such demand been made of them.

To accede to the central plank of the Defendant’s case, that the Right of way is entirely a matter of measurement based on a map some 45 years extant attached to a 1979 Grant, despite the “health warnings” referred by Counsel which the Land Registry affords to its own mapping system, and the specific statutory provisions both in the 1964 and 2006 Acts, is misconceived.

Such an analysis would require that the Court ignore the overwhelming evidence comprising: -

• The very specific wording contained in the Grant of Right of Way and which specific wording carried over when registered as a Burden on the Defendant’s Folio 11077F Co. Dublin

• The physical markers on the ground

• A status quo that has existed for many years

• Historical “Google” Aerial Imaging all verifying that this Right of Way presents as it has always been, that is, the only vehicular access to the Plaintiffs property at 3 Woodlawn since Mr Barker’s late parents acquired 3 Woodlawn in 1992.

• And further where not one of the maps to either the 1979 Grant or the registration as a “Burden” on the Defendant’s File Plan 11077F Co. Dublin contains any measurement, nor does the Defendant’s Folio 11077F Co. Dublin contain a note for the purposes of Section 85(2) of the 1964 Act, as substituted by Section 62 of the 2006 Act and r9(2) LLR 2012, that the boundary is to be conclusive. Quite the contrary, the mapping entries on the Folios contain the specific “health warnings” as to non-conclusivity hereinbefore referred.

Should this Honourable Court hold in favour of the Plaintiffs submission that Mr. Sweeny’s GTS Drawings at “HS-1” and “HS-2” represent the reality on the ground, that this is a vehicular Right of Way as therein defined by reference to the physical markers, and that has been the position for upwards of 30 years, the Court is empowered by way of its inherent jurisdiction, and/or more particularly, pursuant to Section 32(1)(c) of the 1964 Act, as substituted by Section

55 of the 2006 Act to correct any mapping errors to ensure that such mapping accurately reflects the reality on the ground. The Court has jurisdiction to order whatever clarification is necessary where such rectification can be affected without injustice to any person.

Accordingly, it is within the remit of this Honourable Court to declare the Right of Way as a vehicular right of way as per the GTS Drawing “HS-2” to Mr. Sweeny’s Report, with the measurements as appearing thereon, and to order the Property Registration Authority to correct the “yellow” colouring of the Right of Way by having the boundaries/width exactly fixed pursuant to Section 32(1)(c) of the 1964 Act, as substituted by Section 55 of the 2006 Act, with the physical boundary of the vehicular Right of Way presenting as the Timber Postings “1” and “2”, and defined by the broken green line joining these Timber Postings. This will ensure a high degree of accuracy which can only be for the benefit of both respective titles, that of the Defendant as well as the Plaintiffs. The GTS Drawing “HS-2” presenting as a precise map further to a comprehensive ground survey conducted by Mr. Sweeny identifying specific physical features as they currently exist.

The Defendant’s submissions: It is submitted on behalf of the defendants that there is a dispute firstly, that a right of way in law exists at all, for the benefit of the plaintiffs, over the defendant’s property. Secondly, the extent of any right of way in terms of its width is disputed. It is stated that prior to issue of proceedings their client’s solicitors sought a map and evidence of a right of way from the plaintiffs. It is submitted that the plaintiffs refused to furnish such evidence and instead issued these proceedings and sought injunctive relief which was granted on consent.

They state that the plaintiffs are mistaken in their position and that it became clear in the course of the trial that the plaintiffs had never previously instructed an engineer to advise them on the width of the right of way. It is submitted that a grant of right of way was made in favour of Ms Emily Goold by Deed of Grant dated 16th February 1979 between Ms Eileen Talbot and Ms Phoebe Talbot, the defendant’s predecessors on title and Ms Goold of the other part. Ms Goold held a life interest in No 3 and as such it is submitted that any right of way granted to her expired-on transfer of her life interest.

It is further submitted, that on the date of transfer, a significant event occurred in that Ms Eileen Talbot became the owner in possession of both number 2 and 3 Woodlawn. As such Ms Eileen Talbot became the fee simple owner of both the dominant and the servient tenements and therefore the right of way was extinguished as a matter of law, in accordance with the principle of unity of seisin. Reference is made to Bland, Easements at para [21-01]: “An easement or profit is automatically extinguished when the fee simple estates of both tenements become vested in possession of the same person.” As stated in Wylie on Irish Land Law at para [7.97]:

“If the dominant and servient tenements come into the ownership and the possession of the same person, any easement or profit annexed to those lands is extinguished.” As such, the defendant submits that the right of way no longer effects the defendant’s land as a burden as a matter of law and the defendants will be seeking cancellation by Tailte Éireann of the right of way as a burden on the defendant’s folio. It is stated that this is a matter for Tailte Éireann to deal with at first instance. It is further submitted, that as a consequence of the right of way being extinguished at the moment of transfer and/or in accordance with the principle of unity of seisin, this Court has no jurisdiction to make the orders sought by the plaintiffs.

The plaintiffs it is submitted do not have a legal right and therefore there is no right of action against the defendant. With reference to the contract for sale prepared by the Blacks (the plaintiffs’ predecessors in title) it is submitted that the Blacks were disingenuous in that they altered a land registry map to convince the Barkers to buy their property. It is stated that this erroneous map created no rights as the defendant were not party to same and as such the remedy lies against the Blacks and/or their solicitors in that conveyance. The right of way was created by Deed of Grant dated 16th February 1979 by which Eileen Frances Talbot and Phoebe Talbot granted Emily Goold (who had a life interest in No 2) and the words used are as set out above.

It was submitted that the width of the yellow line is 1.1 metres on the Shuttleworth garden and that this was acknowledged in evidence by the plaintiff’s expert. It is further submitted that the plaintiffs have not pleaded or asserted any case of acquisition of a right of way by prescription, nor have they pleaded or asserted a right of way of necessity. It is stated that neither of these principles apply. The plaintiffs it is submitted rely entirely on the right of way registered as a burden on Folio 11077 County Dublin. Reference is made to Murdoch and Hunt’s Encyclopaedia of Irish Law (Bloomsbury Professional 2023 online) which defines vehicle as “Ordinarily means a carriage or other conveyance on land.” It is submitted by the defendants that a vehicle in this case means something less than 1.1m wide – such as the mobility scooter used by Mrs Barker Senior.

It is stated that the plaintiffs gave no evidence in relation to the actual width, state, or use of the right of way for the period 1979 to 1992. Mr Shuttleworth gave evidence that it was a grassy sheep path or walkway during this period which corresponded with the measurements at trial of circa 1.1 metres. It is stated that Mr Shuttleworth’s evidence in this regard is uncontroverted. The defendant’s daughter gave evidence of playing with her friend in the front garden in the early nineties at that there were no cars driving across it. It is submitted that the plaintiff’s called no evidence as to the use of the right for the decade after it was granted.

Reference is made to Deeney on Registration of Deeds and Title in Ireland at para 12.01 which refers to scientific accuracy of Ordnance Survey maps. Reference is also made to Magee on Investigating Unregistered Title (Bloomsbury Professional 2012) in discussing the role of a map. Reference is also made to Wylie and Woods, Irish Conveyancing Law 4th edition 2019 at para 18.53: “There are several alternative methods of description e.g., a purely verbal one in the parcels clause in the body of the deed or by cross-reference to a map or plan annexed or attached to the deed or a combination of both.” Wylie and Woods continue at para 18.67 by stating:

“if the parcels clause uses the formula “as described in the annexed map,” then there may be a presumption that the map is intended to be the governing description.”

Reference is also made to the judgment of Hedigan in McCoy v McGill [2008] IEHC 301 who stated as follows: “9(a) The primary source for defining a boundary line is the deeds in the chain of title.

(b) The plan attached (if there is one) is usually for the purposes of identification only. It cannot normally be relied upon as delineating precise boundaries. If necessary, the deeds will have to be supplemented by such inferences as may be drawn from topographical features which existed or probably did when the conveyance was executed... In relation to the role of a map:

(a) A map or plan may be the determining matter where the parcels provide that the map is to determine the nature and extent of the land in question.

(b) A map may be an essential part of the grant where it is worded such as to make it so and where there can be no certainty without it.

(c) Any conflict between dimensions set out in figures on a plan by which the property is conveyed or transferred and those calculated by scaling off the plan may be resolved by reference to topographical features which existed when the conveyances or transfer were executed.”

It is submitted that the above sections favour the defendant in these proceedings. It is further submitted that the expert witnesses agree on the width of the right of way. It is submitted that the defendant’s evidence in which he referred to topographical features is uncontroverted. It is submitted that if the Land Registry digitised map is challenged then one must have regard to the original map that was inputted to the Land Registry. Reference is made to the starting point as set out in Wylie & Woods at para 18.70: “Though the Registry maps may generally be relied upon as accurate, they are not conclusive as to the boundaries or extent of the land. However, it is a general principle of the system that the register is otherwise conclusive evidence of the title of the registered owner.”

It is submitted that there was no evidence before the Court to permit it to entertain any argument that the digitised map identifying the extent of the right of way is inaccurate. It is submitted that an attempt to say that the lines were added by marker and were unreliable was wholly repudiated. It is submitted that the maintenance agreement is irrelevant to the scope and extent of the right of way. It is submitted that the plaintiffs merely have a right to traverse a pathway which is 1.1 metre at its narrowest. This is stated without prejudice to the fact that Mr Shuttleworth is seeking to revoke the right of way. The defendant claims that the plaintiffs have wrongfully trespassed on his lands, and this has caused him to suffer extreme distress and anxiety. He says that when he collapsed at his home, an ambulance stretcher could not gain access to the property through his front door. Damages are sought on foot of the plaintiff’s undertaking as to damages when seeking injunctive relief. Further it is claimed that driving of vehicles over the defendant’s property has caused damage to his garden which will require repairs.

Decision: I might first address the submission made on behalf of the defendant that a grant of right of way was made in favour of Ms Emily Goold when she held a life interest in No 3 and as such any right of way granted to her expired-on transfer of her life interest. Secondly, it is posited that on the date of transfer, a significant event occurred in that Ms Eileen Talbot became the owner in possession of both number 2 and 3 Woodlawn. As such Ms Eileen Talbot became the fee simple owner of both the dominant and the servient tenements and therefore the right of way was extinguished as a matter of law, in accordance with the principle of unity of seisin. These issues are raised in relation to a grant which occurred in 1979 in circumstances where there is a subsequent registration of the right of way as a burden on the defendant’s predecessor in title’s folio. Further, all parties to each subsequent conveyance/transfer acted on foot of this right and parties entered into a maintenance agreement in relation to same. Contracts were executed such that provision for the right of way was included. All parties acted on the provisions contained in the documents. The Court accepts that the right of way was used for an extensive period of time. Further, to cancel such a right now would leave the plaintiff’s property landlocked.

In making this decision, the Court relies on the provisions of Section 31(1) of the Registration of Title Act, 1964 which provides that the Register shall be conclusive evidence of the title of the owner of the land as appearing on the Register and of any “right, privilege, appurtenance or burden as appearing thereon”. The effect of registration of an easement or profit is to make it a legal interest in the land enforceable against all owners of the land as long as it remains on the Register. See Byrnes & Neylon v Meakstown Construction Ltd [2009] IEHC 123 per McGovern J. at page 17. On the registration of a person as full owner of freehold land with an absolute title, the estate in fee simple in the land, together with all implied or express rights, privileges and appurtenances belonging or appurtenant to, vests in the person so registered. See Section 37(1) of the 1964 Act. The estate of the registered owner is thereafter subject to the Burdens, if any, registered as affecting the lands.

The Court agrees with the proposition that where a right of way has been created by express grant or reservation, the extent of the right of way so created is determined as a matter of construction of the words in the Instrument. As Barton J. said in Gogarty v Hoskins, [1906] 1 I.R. 173 at 184: -

“There is no hard and fast rule in cases of this kind. Every case turns upon the true construction of the particular deed in question”.

The Court considers that the wording contained in the folio for the purpose of describing the right of way is both clear and unambiguous. As such there is no requirement to go behind the wording used in this case, it is clearly intended to include ‘vehicular’ access. The Court does not agree with the contention made on behalf of the defendant, that the right of way is limited to vehicles of a particular width. Such an interpretation is devoid of any commonsense. Further, the Court is satisfied from the evidence given on behalf of the plaintiff that their property was indeed accessible by vehicle over an extensive period of time, and at least dating back to the period when the first plaintiff’s parents acquired the property.

That one should only consider the surrounding circumstances where the wording is unclear or ambiguous within the document itself was affirmed by the English Court of Appeal in St Edmundsbury and Ipswich Diocesan Board of Finance and Another v Clark (No. 2) (1975)

1 All ER, 772 at 779, Sir John Pennycuick J. stating, inter alia:

“First, what is the proper approach on the construction of a conveyance containing the reservation of a right of way? We feel no doubt that the proper approach is that on which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document, as a whole, read in the light of surrounding circumstances……Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction”.

The Court considers that the natural meaning of the words contained as a burden on the defendant’s folio, when read as a whole, include provision for vehicular access, that is by motor vehicles. Clearly, different language would have been required to restrict access to vehicles of a particular width. Further, even where the Court considers the position in light of the surrounding circumstances, the evidence is that the plaintiff’s property has been accessed by vehicle in this manner for an extensive period of time. The plaintiff has no other option for accessing his property by vehicle. The Court does not accept the evidence given by the defendant that this was merely a sheep path. It is also clear from the historical google aerial photographs that motor vehicles were routinely parked within the plaintiff’s property. Access was only possible through the defendant’s driveway at the time of each of these photographs. The Court does not accept that any such access only took place with the special permission of the defendant, on each occasion.

The Court notes, as provided by Section 31(1) of the 1964 Act, the Land Registry Map is not conclusive as to boundaries or extent unless a note to that effect appears on the Register. The Court also relies on Section 85(2) of the 1964 Act, as substituted by Section 62 of the Registration of Deeds and Title Act 2006 and r9(2) of the Land Registry Rules 2012 in this regard. It should be noted that frequently parties to conveyancing transactions cooperate with each other as to the intended meaning of any particular clause in a document and also cooperation is not unusual with regard to identification of rights of way on land registry maps, even where there are slight inaccuracies. Where there is a dispute or any level of unacceptable inaccuracy with mapping, for instance, it is open to this Court to make appropriate orders for the purpose of rectifying the registration.

In light of the above, the Court is of the opinion that any error as to the width of the right of way (as per the land registry map) can be rectified without injustice to any person and as such the Court grants the appropriate order for the purpose of rectifying the land registry map on the defendant’s folio such that the right of way measures a width of 2.4-3 metres. This order is made pursuant to the provisions of Section 32(1)(c) of the 1964 Act as substituted by Section

55 of the 2006 Act. The Court will ask the parties to address it as to the precise form of this order. The Court notes in this regard that the High Court in Stepstone Mortgage Funding Ltd. v Mary Tyrrell (2012) IEHC 139, ordered the Authority to re-instate appurtenant rights on a Folio which it had cancelled without notice to all interested parties.

The width of the right of way is normally specified in the deed or in the plan. If the width of the right of way is not so expressed, then extrinsic evidence may establish the physical extent of the right of way described in the deed, as at the date of the Grant. The Court notes the relevant case law Bulstrode v Lambert (1953), 2 All ER, 728 and Keefe v Amor [1965] 1 QB, 334. In the instant case the wording contained in the grant and on the burden in the folio is unambiguous in the sense that vehicular access is included. The ordinary meaning of the word vehicular includes motor vehicles but may also include a van or a truck, for instance on the occasion of using removal or other services.

The Defendants rely on the judgment of Hedigan in McCoy v McGill & Anor [2008] IEHC

301 who stated as follows: “9(a) The primary source for defining a boundary line is the deeds in the chain of title.

(b) The plan attached (if there is one) is usually for the purposes of identification only. It cannot normally be relied upon as delineating precise boundaries.

(c) If necessary, the deeds will have to be supplemented by such inferences as may be drawn from topographical features which existed or probably did when the conveyance was executed... In relation to the role of a map:

(a) A map or plan may be the determining matter where the parcels provide that the map is to determine the nature and extent of the land in question.

(b) A map may be an essential part of the grant where it is worded such as to make it so and where there can be no certainty without it.

(c) Any conflict between dimensions set out in figures on a plan by which the property is conveyed or transferred and those calculated by scaling off the plan may be resolved by reference to topographical features which existed when the conveyances or transfer were executed.” The Court is of the opinion that these provisions are more supportive of the plaintiffs’ case in that the primary source for defining a boundary line is stated as being the deeds or in this case the Folio. The plan or map attached is stated as being “usually for identification purposes only. It cannot normally be relied upon as delineating precise boundaries.” This is clearly the position in the instant case where the map is less reliable than might be optimum and, where it merely gives a rough indication as to the location of the right of way. It is clear that where there is a conflict between dimensions on a plan, they may be resolved by reference to topographical features, which existed when the transfer was executed.

Conveyancing for the most part is an act of cooperation between the parties and their respective solicitors. This concept is reflected in the statutory provisions covering this area of law as there are certain implied covenants in a conveyance (which includes ‘transfer’ other than a mortgage) for valuable consideration of an estate or interest in land (other than a tenancy) made by a person who is expressed to convey as “beneficial owner.” See Part 2 Paragraph 1 Class 1 Conveyances of the Land and Conveyancing Law Reform Act 2009 which provides for (and restates pre-existing law) implied covenants in such a conveyance as follows:

“(1) That the covenantor has the right to convey the subject-matter of the conveyance, save that the covenantor’s liability is only in respect of any act or omissions of the covenantor or persons within class (ii) of paragraph 1 of Part 1.

(2) That the person to whom the conveyance is made will quietly enjoy the subject-matter of the conveyance without disturbance from any person within any class in paragraph 1 of Part 1.

(3) That the subject-matter of the conveyance is free from all claims, demands, estates, incumbrances and interests.

(4) That the covenantor will, at the covenantor’s own cost, take such action as may be necessary for the better assuring of the subject-matter of the conveyance as may from time to time be reasonably required by the person to whom the conveyance is made and the persons deriving title under that person.”

As such, it is not open to the defendant in the instant case to deny the content of the burden contained on their folio. Nor is it open to them to deny the content of the documents signed and covenants entered into at the time of a prior conveyance or transfer of the property.

In light of the foregoing, the Court hereby grants a declaration that the Right of Way is a vehicular right of way as per the GTS Drawing “HS-2” to Mr. Sweeny’s Report, with the measurements as appearing thereon, and the Court hereby orders the Property Registration Authority to correct the “yellow” colouring of the Right of Way by having the boundaries/width exactly fixed pursuant to Section 32(1)(c) of the 1964 Act, as substituted by Section 55 of the 2006 Act, with the physical boundary of the vehicular Right of Way presenting as the Timber Postings “1” and “2”, and defined by the broken green line joining these Timber Postings and the said drawing will be annexed to the Order of this Court.

Further, the Court grants permanent orders preventing the defendant, his servants or agents, or any party acting in consort with him, obstructing or preventing the plaintiffs using the Right of Way as a vehicular access to their property at 3 Woodlawn.

With regard to the damage to his property claimed by the defendant, the Court refers to the obligations on the Defendant as set out in the Maintenance Agreement, whereby he is obliged to maintain the driveway for this purpose.

I might ask the parties to address the Court on the question of damages and costs.