High Court declares disputed road private, dismissing Council's claim of public status and damages.

THE HIGH COURT

[2025] IEHC 705

Record Number 2021/6064P

Between

DONAL GERARD MCDAID

Plaintiff

and

MONAGHAN COUNTY COUNCIL

Defendant

JUDGMENT of Ms Justice Nessa Cahill delivered on 5 December 2025

INTRODUCTION

1. These proceedings concern the status of a 150m-long portion of road that traverses the Plaintiff’s farmyard in Co. Monaghan (“the Disputed Road”).

2. The Plaintiff claims that the Disputed Road is a private road or a private right of way, whereas the Defendant (“the Council”) claims that it is a public road.

3. The Disputed Road forms part of the road known as “LT81012”, which is known as the “horseshoe road” (“the 12 Road”) as it is connected at both of its ends to another public road, “LT 81011” (“the 11 Road”). It is not in dispute that the 12 Road (including the Disputed Road)

was created in or about 1834. The Plaintiff’s position that there was a subdivision of land formerly owned by Simon Donaghy into three parcels (“the Donaghy Lands”), one of which is owned by the Plaintiff and that the 12 Road was required to allow access from the subdivided parcels of land to the 11 Road. The Council characterises this as speculation. There were some passing references in evidence to the 12 Road and the 11 Road not being public roads, but the case pleaded, reliefs sought and the evidence presented are confined to the Disputed Road and that is the sole focus of this judgment.

4. In terms of the use of the Disputed Road, the position of the Plaintiff is that it is a private road and in use as such for 190 years. It is contended that members of the Plaintiff’s family are the primary users of the Disputed Road; that successors in title to the owners of the Donaghy Lands have always had the right to traverse the Disputed Road since 1834; that there was no evidence of any dedication or taking in charge of that portion of roadwhether pursuant to the Local Government Act 1953 (“the 1953 Act”) or otherwise - and that it was not maintained by the Council. It is further said there is no evidence to show it is a public road. Insofar as the Council relied on road schedules, the Plaintiff contends that the schedule must be signed, sealed and dated and that these requirements are not met here.

5. The Council’s position is that the Disputed Road was a public right of way and that the entire 12 Road, including the Disputed Road, was taken in charge by the Council. It is said that this was because it was dedicated as a public right of way and taken in charge under the 1953 Act (reference is also made to earlier regimes, but no real attempt was made to rely on same). It is also asserted that it constitutes a public road by virtue of a certificate issued on 14 August 2019 by the Council (signed by its Deputy Chief Executive) under section 11(5) of the Roads Act 1993 (“the 1993 Act”) declaring the Disputed Road to be a public road (“the Section 11(5)

Certificate”).

6. The Council relies on the maxim of omnia praesumuntur rite esse acta (“presumption of regularity”) to overcome the absence of evidence of the road being taken in charge and also relies on the assertion that there was evidence of works carried out on the Disputed Road in 1978, 2000/2001 and 2022; the fact that the Road was closed in 2015 and since 2017; and on the road schedules, to show that it is a public road. An alternative argument advanced by the Council is that the Plaintiff is estopped from denying that the road is a public road. The Council also relies on an argument of delay or laches against the Plaintiff. The Council’s position is that it was only post-2019 when enforcement proceedings were commenced challenging the construction of an underpass beneath the Disputed Road that the Plaintiff raised the question of the road not being a public road.

7. By these proceedings the Plaintiff seeks, in summary, declarations that the Disputed Road is a private road and/or public right of way; that it is not a public road; that the road schedule relied on by the Council which is not signed and/or sealed is invalid and of no legal effect. The Plaintiff also seeks declarations that the roads listed in the road schedule are not public roads and that the Section 11(5) Certificate is ultra vires, invalid and of no effect. Damages are also sought.

8. On the basis of the relief sought, the question to assess is whether the Disputed Road was a private road, a private right of way, a public right of way or a public road. This requires the assessment of various legislative regimes and steps that were taken in connection with the Disputed Road and uses made of it over a period of some 190 years.

9. The relevant issues will be assessed under the following headings:

(A) Whether there was a public right of way (B) Whether the Disputed Road was taken in charge by the Council (C) ) Alleged relevance of enforcement proceedings (D) Laches/Delay (E) Estoppel (F) Damages (G) Conclusions

(A) WHETHER THERE WAS A PUBLIC RIGHT OF WAY

Pleadings

10. One of the reliefs sought by the Plaintiff is a declaration that the Disputed Road was a “private road and/or public right of way”. By the Statement of Claim, it is pleaded that the 12 Road was created in 1834 when the lands of Simon Donaghy were sub-divided between three of his children in order to ensure access to each of those plots of land. It is also pleaded that a private right of way was created through the lands now owned by the Plaintiff and that its purpose was to allow access from the 12 Road to the 11 Road for the use of the owners of the other two parcels of land and to further adjoining parcels (which were also transferred to the Plaintiff’s predecessor in title). Farm buildings were constructed several years after the creation of the private right of way, on either side of it, according to the Plaintiff. It is also pleaded that the lands transferred in 1834 are now owned by descendants (direct or indirect) of Mr Donaghy, namely the Plaintiff, Gary and Turlough Keenan and Patrick Donaghy. The Plaintiff was

registered as owner of the lands traversed by the Disputed Road (Folio MN8394) on 11 May 2015.

11. It is pleaded that the Disputed Road is not a public road, but merely a right of way for the use of descendants of Simon Donaghy.

12. It must be noted that, while an order is sought to the effect that the Disputed Road is a “private road/public right of way” the Statement of Claim only addresses the Road being a private right of way and it was clear from the written submissions and from the evidence at the hearing that the Plaintiff was in fact asserting that the Road is a private right of way and is disputing its characterisation as a public right of way. I proceed on that basis.

13. By its defence, the Council joins issue with the Plaintiff’s case and asserts the defences of estoppel and laches.

Submissions

14. On the question of a public right of way, both parties relied on the judgment of the Supreme Court in Walsh v. Sligo County Council [2014] 4 IR 417 (“Walsh”) and on the judgment of the Court of Appeal in Kildare County Council v. Morrin [2021] IECA 341 (“Morrin”). The Council also relied on Walker v. Leonach [2018] IECA 132 (“Walker”); Mullen v. Irish Fish Meal Company (Unreported, High Court, Kenny J., 9 November 1970) (“Mullen”); and Connell v. Porter (1972) [2005] 3 IR 601.

15. The Plaintiff relied heavily on Walker, contending (in closing written submissions) the Plaintiff and his predecessors tolerated the use of a right of way by a small group of neighbours “through a sense of neighbourliness”. Relying on Walsh, the Plaintiff also contended that the Disputed Road was not dedicated as a public right of way, but was a private right of way for the children of Mr Donaghy to access their lands and that the occasional use of the road by the public did not create public rights of way. It was said that the evidence of user was insufficient for the court to infer dedication of a public right of way, as the user was either with express or implied permission or was tolerated use by neighbours.

16. The Council’s case, in summary, was that no public right of way arises here by use since time immemorial as that concept requires the starting point for the use to be unclear (reliance is placed on Mullen). There is no dispute in this respect. The Council contends that, for a public right of way to have been created over the Disputed Road, it must have been created by dedication (relying on Walsh). Again, there is no dispute on this point.

17. The Council also submits that any opposition to user of the road by the owner is relevant to assessing whether a public right of way arises (Walker is cited on this proposition). A related point made is that an intention to dedicate may be inferred from the noninterference by the landowner with obvious public user (citing Mann v. Brodie [1885] 10 AC 378) and it is also said that the attitude of the landowner to maintenance or other works carried out by the Council on the road (if any) was relevant to the determination of an intention to dedicate (citing Morrin).

18. Two other propositions advanced by the Council are that the precise volume of users is not determinative: it is sufficient that the route is used by the public at all (relying again on Walker)

and that, where there is clear evidence of user over a long period of time, similarly clear evidence would be required to rebut the presumption of dedication (Walsh and cases cited in it are cited for this proposition).

19. On the evidence, the Council’s position is that the evidence shows there was public use of the road over 60 years and that there was no evidence of opposition to the use of the road before 2022. No permission was sought or given for the use of the road by the public, according to the Council. It is also asserted that public money was spent on the road, including at the request of the Plaintiff’s predecessor in title and that there was sufficient evidence to infer an intention to dedicate the road as a public right of way.

20. As regards the Plaintiff’s assertion that there was a private right of way created for the benefit of the neighbouring landowners (who now own the Donaghy Lands), the Council points out that Folio MN 8394 does not record any private right of way as a burden on the land and Mr McDaid gave evidence he does not know where evidence would be found of it.

Legal principles

21. There was – and could be – no real dispute between the parties about the legal principles that govern the creation of a public right of way by dedication.

22. The starting point must be the seminal Supreme Court judgment in Walsh. That case arose from a dispute regarding the existence of a right of way through lands owned by the plaintiffs at Lissadell in County Sligo. The plaintiffs sought a declaration that their lands were not subject to any public rights of way. Sligo County Council counterclaimed, asserting rights of way over specified and identified roads, including one which led to a beach, which it claimed had been dedicated to the public. The position of Sligo County Council was that this dedication was to be inferred from long user of the paths as of right by members of the public.

23. The Plaintiff argued, among other points, that there was insufficient public user and that any accepted user of the avenues arose merely as a matter of courtesy to neighbours.

24. The High Court found in favour of Sligo County Council, concluding that dedication of the public right of way could be inferred. Fennelly, McKechnie and MacMenamin JJ. delivered a joint judgment with which Denham CJ and Murray J agreed.

25. The opening paragraphs of that judgment are an important reminder of what it means for a road to be a public right of way:

“[3] A public right of way is a highway. The general public has the right to pass and repass at all times across the land over which the way runs.

[4] The way may be claimed to run over the avenues of a great landed estate, such as Lissadell. It may also pass over the fields of a farm, large or small; over a suburban garden (see Bruen v. Murphy (Unreported, High Court, McWilliam J., 11th March, 1980)); or along a passage way leading into a public house (see Connell v Porter(1972) [2005] 3 I.R. 601).

[5] Even if it is not maintained by the public road authority, a public right of way is in law a highway. It confers the unrestricted right of the general public to pass and repass at all times of the day or night, and at all seasons without notice to, or permission from, the landowner over whose land the way runs.

[6] The landowner must yield to and respect the rights of the public and must accept any consequent invasion of his right to undisturbed privacy and the enjoyment of his property.”

26. The following statements by the Supreme Court regarding the recognition of rights of way by dedication and the balancing of rights that is inherent in that exercise, are an important starting point for the analysis to be undertaken in this judgment:

“[8] The common law of dedication continues in force in Ireland. It requires consideration of all the facts: the duration, extent, nature and context of public user, and the possibility of inferring or presuming that the landowner has dedicated the way to the public. Mere proof of public user does not suffice to create the right.

[9] These legal principles ensure that an appropriate balance is struck between public and private rights. Depending on the circumstances, user may provide compelling evidence of dedication to the public, or may more properly be ascribed to tolerance or liberality of the landowner. The landowner will not, by respecting a tradition of generosity and openness be deemed to have encumbered his land with public rights.

The law does not convert such acts into legal obligations.”

27. In Walsh, as here, the issue was whether an intention to dedicate a road as a public right of way could be inferred. The following principles emerge from Walsh and the many authorities discussed by the Supreme Court in that case:

(a) “The burden of proof of dedication lies on the person alleging it” (at [67]).

(b) “whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence” (at [66], also [75]).

(c) “What has to be proved is that the landowner had the intention to dedicate” (at [70]).

(d) “[W]here there is evidence of long uninterrupted user as of right of a way by the public, the court, depending on the duration, frequency, and intensity, of the user, may infer that the owner dedicated the way to the public and that the public accepted that dedication” (at [74]). This was described further as follows: “…the quality, duration, frequency, and intensity of the public user will be highly material. So also will the degree of awareness of the landowner and his or her attitude; in short all the surrounding circumstances” (at [78]).

(e) “Part of the evidence of dedication, in combination with user, may be the fact that public money has been spent, with the consent of the landowner, on the repair or maintenance of the route” (at [79]).

(f) “[U]ser alone does not create a public right of way” (at [71]). On the contrary, “[t]he user which can lead to the inference of dedication of a public right of way must be user as of right” (at [92]). On the question of what constitutes “user as of right”, the Court guidance is that:

▪ “It must be exercised nec vi (without force), nec clam (openly, i.e., not in secret), nec precario (not be based on permission)” (at [92]);

▪ “User as of right does not require that the users believe subjectively that they have a right to use the way. The test is objective” (at [93]);

▪ “User without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis-à-vis his neighbours without being considered to be the exercise of a right” (at [95]).

(g) “It is relevant to see whether the landowner took any steps, to use the language of Lord Blackburn, to ‘disabuse’ the public of their belief that they had a right to use the way” (at [74]). The Supreme Court then addressed how a landowner may resist an inference of dedication:

“Whether the landowner has communicated his intention not to dedicate is a matter of fact. Looking at all the circumstances, it has to be determined objectively whether, in spite of the evidence of user, the landowner has shown he resisted the dedication. If he has acquiesced in the user, it will normally be inferred that he has dedicated. Action to the contrary effect may take many forms” (at [100]).

(h) On the topic of toleration, the following passage is instructive:

“The cases concerning toleration contain several indications that owners should not be constrained to be ‘churlish’ in the insistence of their own property rights. It would be undesirable and inconsistent with a policy of good neighbourliness if the law were so readily to infer dedication of public rights of way from acts of openness and tolerance that landowners were induced to adopt a fortress mentality” (at [96]).

(i) The counter-balance to this is that “[w]here there is clear and uncontradicted evidence of extensive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicated objection” (at [99]).

28. Walsh includes a discussion about when the right of way is alleged to have commenced, with the Supreme Court summarising the issue as follows:

“Where user is proved to have occurred over the entire period of living memory, it follows that it is not possible to show when it commenced, and it may be assumed that the way has been used by the public for an indefinitely long time in the past” (at [86]).

29. The Court noted that “user for a shorter period may, depending on the circumstances be sufficient” (at [82]). However, there can be no inference of dedication of a public right of way “by reference to user which did not commence until many years later” ([86]).

30. In Walker, the Court of Appeal (Whelan J., Peart and Gilligan JJ. agreeing), made the following important observations regarding the category of users that is required for dedication to be inferred:

“… as a matter of law, the intensity of user or actual numbers availing of the way is not the material test with regard to proof of either user as of right by the public or acceptance by the public of an implied dedication. Rather it must be shown that the way was available to and availed of by the public at large and not merely to a closed category or class of individuals linked to an identified propositus nexus or other personal nexus such as family, employment, servants or tenants of the landowner. Provided a way is proven to be accessible to and used for the benefit of the public generally though the numbers actually availing of the way be low does not preclude a finding of implied dedication of a public right of way” (at [93]).

31. This passage underlines that the alleged right of way must be used by “the public at large” and not a closed category of persons.

32. The Court of Appeal also revisited the question of tolerance of use of a lane: “Acts may be tolerated or acquiesced in by a landowner without being considered to amount to the exercise of a right” (at [126]).

33. This was further explained in the following terms:

“Whether the respondent and his father had communicated their intention not to dedicate was a matter of fact. Looking at all the circumstances, it had to be determined objectively whether, in spite of the evidence of user, they had demonstrated that they had resisted dedication. If an individual has acquiesced without demur in the user, it will normally be inferred that he has dedicated. Communication may take many forms”

(at [131]).

34. The Court’s findings on public expenditure are also important:

“While evidence of public expenditure on the maintenance of a way supports an inference that it is a public right of way, it is not of conclusive effect. A record of a presentment does not create a highway: it is merely evidence which may support the existence of a highway” (at [96]).

35. In that case, the Court upheld the decision of the High Court that there was no public right of way, finding that

“The appellants failed to discharge the burden of proof including as to the requisite user by the public as of right of the disputed way over the owner's land. There was not sufficient unequivocal evidence, including evidence of conduct, from which an inference of dedication or animus dedicandi could be made consistent with an implied intention to dedicate the disputed way to the public. Such an intention should be manifest from the conduct of the owner. There was insufficient evidence which would have entitled the Court to infer or find acceptance by the public of the dedication of the way” (at [108]).

36. The placement of the burden of proof on the Council to show the dedication of a right of way was also confirmed by the Court of Appeal in Morrin.

37. In Morrin, Faherty J. considered the evidence of the use of the disputed land in that case (referred to as “plot 202”) and found that there was evidence of use of the right of way. The evidence recounted in that judgment and summarised below is notable:

“I accept (as clearly did the trial judge) that there was regular two-way vehicular traffic passing and repassing on Corban's Lane both pre-and post-1991 and that that traffic was necessarily pushed southwards towards the defendant's property (plot 202)

after the construction of the footpath on the northern side of the Lane. Indeed, it was acknowledged by the defendant himself that vehicular traffic passed over plot 202 when cars were not parked there” (at [116]).

38. The public use of Plot 202 was found to be clearly established on the evidence in that case.

Even this was not sufficient for the establishment of a public right of way:

“What was required to be established was the requisite animus dedicandi on the defendant's part. It is well established in the relevant case law that the issue is not one of competing use of the lands. The question is whether the defendant's ownership has been displaced. Thus, it is not the case that it is sufficient for the assertor of a public right of way to frame the claim by reference to the use of the relevant lands by the public compared to that of the landowner. The dedication to the public must be inferred from the actions of the owner of the fee” (at [117]).

39. In Morrin itself, there was a significant question about the works done (or not done) by the local authority on the forecourt area that was at issue in that case. Faherty J. noted “animus dedicandi may be inferred ‘from the fact that the way has been maintained and repaired by the local authority’”, quoting Ó’Dálaigh C. J. in Connell v. Porter” (at [121]). The Court then observed that “there was no direct evidence of any maintenance of the forecourt by the Council at any stage.” There was some evidence of repairs, filling in potholes, on plot 202 in 2011, although the landowner had complained about these works and the encroachment on his property (at [122]). The High Court judge found that the evidence was not sufficient to establish

that the local authority accepted responsibility for the maintenance, repair and resurfacing of the area, such as to allow an inference of dedication.

40. The Court of Appeal noted that “Remarkably… no records or documentation were produced in respect of maintenance or repair works having been carried out between 1991 and 2009/2010”

(at [123]) and found that the High Court judge was entitled to find there was very little reliable evidence from the Council as to works, cleaning and maintenance carried out by its various departments over plot 202 from which the court should infer a dedication by the defendant.

The facts that the landowner had complained about the Council carrying out works on his property and carried out maintenance works himself and controlled its use, were found to belie the suggestion that there was the requisite intention to dedicate the land to the public. Faherty

J. concluded,

“In my view, it cannot be said here, unlike in Connell v. Porter, that the maintenance works being relied on here by the Council “was such a notorious and obvious fact that it would require strong evidence on the part of the owner of the fee to displace the presumption that he must have been aware of it.” In Connell v. Porter, there was evidence spanning some thirty years, including actual records of the work done by the local authority in terms of the paving, lighting, cleaning and the provision of refuse services from which the inference of dedication could be drawn. That is in marked contrast to the present case where the real evidence was confined to two invoices from May 2011.” (at [125]).

Evidence presented

Witnesses as to Fact

41. The witnesses as to fact who gave evidence on behalf of the Council regarding the use of the Disputed Road were Mr Gary Keenan, Mr Tom McConnell and Mr Brian Duffy. Each of these individuals gave evidence as occupiers of, or visitors to family members who occupied, properties that were located on the 12 Road.

42. Mr Keenan’s evidence was that he made repeated and regular use of the Disputed Road from 2008 when he became a resident of the 12 Road and, prior to that, as a visitor to the lands owned by his family and then farmed by him and his brother. His evidence was that, before the closure of access to the Disputed Road in 2018, he always reached the farm through the McDaid farmyard.

43. There is no reason to doubt his evidence in this respect and no challenge to it in crossexamination. On the contrary, the McDaids did not dispute that the Keenans (and their predecessors in title) used the Disputed Road for access to the 11 Road. The only real question concerning the evidence of Mr Keenan is whether the lands his family occupied were originally part of the Donaghy Lands and had the benefit of a specific private right of way upon the subdivision of those lands into three parcels. This was the position of the Plaintiff and Mr McDaid Senior.

44. There was also a factual dispute in this respect as regards the family history and who precisely was married to who, but I do not consider the resolution of this question to be necessary to the issues I have to decide. Mr Keenan’s evidence under cross-examination was that he did not believe the lands all came from the Donaghy Lands, although he could not say whether they were derived from the same title. He referred to title documents which he said would support his position, but these documents were not presented or available in Court.

45. The key point is that he did not demonstrate any basis to dispute the clear evidence of Mr McDaid Senior that the lands Mr Keenan and his family owns were carved out of the Donaghy Lands. His evidence was that he could “not say” whether this was the case.

46. I find that, as a matter of probability, on the basis of the evidence in fact presented to me, the lands now occupied by the Keenan family were originally part of the Donaghy Lands and derive from that same title. I also accept that a right of way was created over the McDaid lands to facilitate that division of the property, as addressed in the very clear and comprehensive evidence of Mr McDaid Senior.

47. While Mr Keenan’s evidence was that he never heard any mention of a right of way, I am not satisfied that this is probative of the existence or otherwise of such a right of way.

48. Even if there was no express right of way expressly created, the evidence showed that the Keenans are descendants of Mr Donaghy. There is therefore a historical familial connection between the lands owned by the Keenans and those owned by the McDaids. This is relevant, according to Walker, as outlined above.

49. Mr Keenan referenced other people who said he observed using the Road, namely the postman, the tanker collecting milk, Mr McConnell and Mr Kevin Daly. Mr Daly did not give evidence and the questions of the use of the Road by the postman and milk tanker are addressed below.

50. Mr McConnell gave evidence that he lived on the road since his birth in 1967 and that he and his family passed through the Disputed Road if that was a shorter route to the destination. He said this was a daily basis before the closure of the road in 2017. His evidence was that the milk tanker “picked up milk at McDaids, come on to Donaghys, picked up milk there, then it come on to here at my place and picked up milk there and then exited here.” This use ceased in 1995.

51. Mr McConnell also testified that he needed to use a 32-foot trailer for certain purposes (to transport feed and straw) and that it would only fit through the Disputed Road and he would use that means of access for such purposes. With regard to maintenance, he said that the Council put down stone and tar when he was a child and that it would cover the entire 12 Road.

He confirmed under cross-examination that this was done in 1978 and, when put to him that the next time was in 2000, he said he thought it was earlier than that (I note it had been accepted on behalf of the Defendant that 2000 was the year when works were done on the 12 Road).

52. Notably, when Mr McConnell was asked in direct examination about the impact of the closure of the road since 2018, his answer was “It means that you meet an awful lot more traffic at this end, at my end, at this end of the road you meet an awful lot more traffic because they can't exit.” He did not refer to inconvenience caused by being unable to use the Disputed Road himself.

53. There is a direct factual conflict between the Plaintiff and Mr McDaid Senior, on the one hand, and Mr McConnell, on the other, with regard to the latter’s use of the Disputed Road. The evidence of Mr McDaid Senior was that Mr McConnell did not use the Disputed Road other than when he sought permission to do so to transport “a load of straw” through the Disputed Road. Mr McDaid Senior said he had no recollection of the use of the Road by a milk tanker to collect milk, although he also raised a question about when they ceased producing milk, which suggests an acceptance that there was such a use previously. In his evidence, Mr Keenan accepted under cross examination that the milk tanker had not used the Disputed Road since the mid-1990s. The evidence of the use by the milk tanker suggests that it was to serve a limited number of properties, including the McDaid’s themselves.

54. Mr McDaid Senior also gave evidence about the distance from the McConnell property to the

11 Road and stated that it would be a considerably longer route to travel through the Disputed Road and that it was not used for that purpose.

55. Mr McConnell (like Mr Keenan) mentioned the postman using the Disputed Road. The Plaintiff and Mr McDaid Senior disputed that the postman typically used the Disputed Road. Mr McDaid Senior said he “generally” used the other end of the 12 Road to access the 11 Road.

The Plaintiff’s evidence was that the postman delivers to his property and there are two exits then: one to the 11 Road and one to the 12 Road. He said that the exit onto the 12 Road was at the Donaghy property and that there was a right to use the road to access that property and, from there, the postman could continue down the 12 Road to the neighbouring properties. This seems entirely credible and reasonable, and would not constitute public use of the Road. I am also not persuaded that use by a postman would be relevant, given that the delivery of post can require access to private roads. No evidence or legal propositions were advanced to demonstrate that travel on a road by a postman can support the existence of a public right of way and I do not believe it would be safe to place reliance on disputed evidence that the postman used the Disputed Road to deliver post. The evidence led on behalf of the Council regarding the postman was limited and could be reconciled with the evidence on behalf of the Plaintiff, to lead to the conclusion that the postman may have sometimes used the Disputed Road, but primarily when he was in any event delivering post to the McDaid property. I am not persuaded that evidence regarding the postman points to the Disputed Road being dedicated as a public right of way.

56. Having considered the evidence of the relevant factual witnesses (including the Plaintiff and Mr McDaid Senior), I am satisfied that there is credible evidence that Mr McConnell did use the Disputed Road on some occasions to access his farm and property prior to 2017, when necessary to do so, particularly when he was using a particularly large trailer. There is a sharp factual dispute as to whether he sought permission to use the Disputed Road on those occasions.

His evidence about use of the Road as a child was more vague, but I have no reason to doubt his account of walking through the Disputed Road to reach the lake on the other side of the 11 Road (as it was a shorter route to that destination). Regardless of whether express permission was sought, the evidence showed that the use of the Road by Mr McConnell was limited in its frequency and intensity and was moreover limited to Mr McConnell as a member of a small class of proximate neighbours. It would have been very unneighbourly of the McDaids to prevent Mr McConnell as a child passing through the farmyard to reach the lake near that end of the 11 Road or to prevent him passing when he needed to use a trailer that would not fit the other direction down the 12 Road.

57. It was put to Mr McConnell in cross-examination that he did not in fact live on the 12 road, but he maintained his evidence, there was no evidence to contradict it, and I see no basis not to accept Mr McConnell’s evidence in this respect. Insofar as Mr McConnell gave evidence about the works done to the 12 Road, his evidence was vague and at odds with the facts presented by others with clearer recollections of what happened in 1978 and 2000 and I do not have regard to same.

58. The third and final witness who was called by the Council to give evidence regarding the use of the Disputed Road was Mr Brian Duffy. His evidence was that he owns land on the 12 Road, which is now being used as forestry and includes a derelict house. This was the house where he was born in 1962 and resided until 1970. He has not lived on the 12 Road since then and now resides in County Westmeath. His evidence was that he used the Disputed Road as a child on the way to school and has passed through that Road approximately three or four times per year since then (prior to its closure). He said that he never felt the need to request permission to use the Road and was never told he could not do so. He said other neighbours and visitors also used it in the ‘60s, although his evidence was understandably vague in that respect (given he ceased to reside there when he was eight years old).

59. Mr. Duffy’s evidence is credible, but I am reluctant to attach significant weight to it given its very limited extent, particularly as Mr Duffy has not occupied or regularly used any property on the 12 Road since 1970. It is also a factor in my assessment of Mr Duffy’s evidence that it was not put to the Plaintiff or Mr McDaid Senior. He was not identified to them as a potential witness and I do not know what their response to his evidence would have been.

60. Turning then to the specific evidence given by and on behalf of the Plaintiff, what was said was that the only use of the Disputed Road was by the McDaids and the landowners who were descendants of the owners of the Donaghy Lands. The Plaintiff also conceded that “you always get strays.” I have already addressed the specific evidence about the postman and milk tanker and the Plaintiff’s response to the evidence of Mr Keenan and Mr McConnell.

61. Mr Furey was an expert witness called to give evidence on behalf of the Plaintiff. He gave evidence of the likelihood of there having been a right of way over the lands, but then accepted in cross-examination that he “didn’t actually look at the title documents” and ultimately and fairly accepted that his conclusions in respect of the road being a right of way in 1834 was “speculation based on historical mapping”. I do not find his evidence to be of particular assistance in assessing the existence or otherwise of a public right of way on the Disputed Road.

Planning Applications

62. In seeking to substantiate its position that there was no public right of way, the Council placed reliance on a number of planning applications relation to the Disputed Road. These applications – and the evidence in relation to them – will next be summarised.

63. In a planning application dated 4 July 2002 submitted by Mr Kellett as an agent on behalf of Mr McDaid Senior, it is stated that “Distance of proposed building from public road: Distance from proposed slurry tank 19.25 metres. Distance from road to proposed cubicle house 25.2 metres." Mr McDaid Senior’s evidence under cross-examination was that he “never instructed”

Mr Kellett to say that and that it “doesn’t make it a public road”.

64. A public site notice for planning permission was placed by the McDaid’s agent on the Disputed Road in 2002. It was put to Mr McDaid in cross-examination that the notice must be on a public road. His response was to challenge the 11 Road being a public road and he continued: “And the reason why he did that was because neither roads were public roads and he had to place it somewhere, and why didn't you people object at that particular point in time?” So there was no factual dispute that a public notice was placed on the Disputed Road, but the position was maintained that it was not a public road.

65. A condition of the grant of permission dated 15 October 2002 was that “All farm waste and debris deposited on the county road that traverses the farm complex to be removed. Road to be maintained in a clean and tidy condition at all times.” This permission was never acted upon.

It was not disputed that “county road” has the same meaning as “public road”.

66. In an application submitted by Mr Kellett on behalf of Mr McDaid Senior on 29 April 2003, it is stated in response to the question “Distance of proposed building from public road”, “6 metres from roadway.” Mr McDaid Senior’s evidence was that he couldn’t say what Mr Kellett had done and that Mr Kellett “never asked me to look at what he was putting in”. In response to the question of whether he saw the planning applications, he said emphatically “Absolutely, absolutely never. Never, ever, ever.”

67. By letter dated 18 June 2003, Mr Kellett wrote, “I have consulted with my client Mr. McDaid and he has instructed me to report to you as follows.” The letter then details accounts of what Mr McDaid Senior said had been discussed and agreed regarding the maintenance of the Disputed Road and refers to a meeting between him and Mr Hall and Mr Peter Smyth. Mr McDaid Senior accepted there was a meeting with Mr Hall and that it was agreed that Mr Hall would mark out the roadway separating the farmyard complex, that Mr McDaid Senior would put in place a concrete border defining his land, and then the Council would lay bitumen on it.

His evidence was that this never occurred.

68. There was then a grant of planning permission on 29 April 2004, which included the following condition: “Within one month from the date of the grant of permission the applicant shall submit and agree details in writing with the planning authority in respect of the exact alignment and location of the county road through the site.” There were also other references to the “public road”, including “Applicant shall install Cattlegrid/ACO Drain/Gullies at proposed in such a manner as to prevent water from the entrance flowing onto the public road.” McDaid Senior’s evidence was that he could not understand the latter condition – or another condition about the flow of water from the public road to the site - for several reasons and that there was no question of installing a cattlegrid or of water flowing onto the site.

69. The evidence of Mr McDaid Senior was that the planning conditions in 2004 which referenced the Disputed Road as a public road were not agreed by Mr Kellett on his behalf or at any meeting with Mr Hall. He said assertions by Mr Kellett in correspondence to that effect were “not true”.

70. A planning application dated 21 June 2007 represented the 12 Road as a “public road” referring to the “Distance of the proposed building from the public road.” The Plaintiff’s evidence was that “I did not authorise Mr. Kellett to do anything in relation to a public road as to that planning application. Mr. Kellett was showing what my intentions were in relation to the construction of the new dairy and ancillary works. But the road, whether it was public or private or a public right-of-way, never came into question.”

71. A letter from CS Pringle Ltd to the administrative officer in the planning section, dated 21 June 2007 noted that, “It should be noted that a public road runs directly through the centre of Mr.

McDaid's farm complex.” The evidence of the Plaintiff was that he did not give instructions to that effect and was not even aware of this cover letter and did not receive a copy of the application.

72. Notification of final grant of permission was provided in September 2007 and the Council asserts that it was granted in reliance on the representations made. The Plaintiff accepted that that the Council had relied upon the said representations although he asserts this was done erroneously. The planning application was granted and a milking parlour and cattle sheds were then constructed between 2008 and 2015 (on the Plaintiff’s evidence).

73. The Council put to Mr McDaid Senior in cross-examination that he had attended a meeting with Mr Lennon and a member of the Council, Mr Noel Keelan, at the site on 9 June 2017 and requested the Council to repair the surface of the Disputed Road, if an underpass was built under it. This was not disputed by Mr. McDaid Senior. His evidence was that he never regarded it as a “public road” and confirmed an affidavit he swore for the purpose of Circuit Court proceedings, in which he swore: “The public road would be more appropriately regarded as a boreen or laneway and would be so described by farmers in the area.”

74. Under cross-examination, he insisted that “My evidence was that I was not accepting that it was ever a public road.” He then gave evidence that “the only reason why I said “public road” was because the Council were constantly telling me it was a public road.” Mr McDaid Senior also accepted and confirmed that the Council had used the Disputed Road for access when it was undertaking works: “Q. So you acknowledge there that the Council used the road through your farmyard to get access to the rest of the road, isn't that so? A. Yeah.”

75. From 2017 onwards, there was engagement between the Council and the Plaintiff in relation to what the Council regarded as unauthorised development at the site. These events are addressed in a later section of the judgment. However, their relevance rests in the fact that (a) from 2017 onwards, access to the 11 Road via the Disputed Road has been closed and (b) the Council asserts that it is solely for the purpose and in the context of the enforcement proceedings that the Plaintiff began to assert in 2018 that the Disputed Road was not a public road.

76. In light of the foregoing evidence, there was the following exchange during the crossexamination of Mr McDaid Senior:

“Q. You're changing your position here from all of those planning applications where it was represented on your behalf that this was a public road, isn't that right?

A. No, because I never saw any of the letters that you referred to yesterday in relation to it. I never saw them. I didn't know what was on them until I seen them as a result of this.

Q. Alright.”

77. The Plaintiff in his evidence accepts that Mr Kellett was his or his father’s agent between 2002 and 2007: “Q. You or your father dealt with Mr. Kellett as your agent between 2002 and 2007?

A. Yes.” He says that the question of whether the road was a public road or a private right of way “never arose” and that “the conversation never came up”. The Plaintiff’s evidence was that “I can't talk for the agent” and “you would have to ask the agent as to what he was representing.”

78. He did however accept in the context of the 2004 Application that,

“Q. if one looks at this note, do you accept that within Monaghan County Council they're dealing with this as a public road?

A. Erroneously, yes.”

79. He also answered “yes” to the question “So following representations by your father's agent that this was a public road, they have granted planning permission and they have provided conditions on the road insofar as it relates to a public road, isn't that right?”

80. In the context of the 2007 Application, the Plaintiff then confirmed as follows:

“Q… you accept that this is the fifth occasion that he has represented to Monaghan County Council on your behalf or on your father's behalf that the portion of road in dispute in these proceedings is a public road?

A. Erroneously, yes.”

81. The evidence of the Plaintiff in relation to the planning applications was that “I was involved in all planning applications which related to me” and he “might be involved” in applications that did not relate to him.

82. A curiosity of the Plaintiff’s evidence is that he said he formed the view that the road was not a public road sometime after the Council determined that the proposed development was not exempted development (which occurred in July 2019):

“You must remember at that stage because of my investigation alone and my investigation in the Internet and my requests of Monaghan County Council that we were becoming more definite that Monaghan County Council had not taken the road in charge, they had not dedicated it. The Public Bodies Order 1946 they couldn't authenticate it so thereby we were 100% certain at that stage… that the road was not a public road.”

83. Having considered the documentary evidence presented concerning the applications for planning permission and the oral evidence at trial regarding these applications, it can be concluded that there were representations on behalf of the Plaintiff and his father on repeated occasions that the road was a public road and that these representations were made in order to advance those applications. I was not entirely persuaded by the attempts of the Plaintiff or his father to distance themselves from those representations or statements. The statements were made for the purpose of obtaining planning permission and I do not believe from my observation of the evidence of both witnesses that they were likely to -or did - allow repeated applications or correspondence about their land to be submitted to the Council on their behalf without ever reading one of them or being aware of their contents. The Plaintiff himself said under cross-examination evidence that “I was involved in all planning applications which related to me” and he also said he “might be involved” in applications that did not relate to him.

It is also relevant that the Plaintiff stated in his evidence that sometime between 2019 and 2020 he carried out his own investigations and formed the view that the road was not a public road.

84. However, as will be discussed later, these findings do not of themselves give rise to an inference of dedication of the Disputed Road. All of the relevant facts and evidence of the user of the Disputed Road must be weighed to assess that question.

85. One matter that arises in this respect is whether and to what extent the Council expended public monies on repairs and/or maintenance work to the Disputed Road (as addressed in Morrin).

Evidence regarding works to the Disputed Road

86. Mr McDaid Senior confirmed in his evidence that he did petition the Council in 1978 to carry out repair works on the Disputed Road and his description of what then occurred is as follows:

“On Monday morning, on Monday morning the tractor and one of the circular saws came in on the road and started to cut the hedges. They cut the hedges as far as our property where the farmyard is On Monday morning, on Monday morning the tractor and one of the circular saws came in on the road and started to cut the hedges. They cut the hedges as far as our property where the farmyard is On Monday morning, on Monday morning the tractor and one of the circular saws came in on the road and started to cut the hedges. They cut the hedges as far as our property where the farmyard is today and then after a few days a roller appeared. Then gravel from a sandpit owned by Reilly Brothers, who are still operating in a major way in the whole concreting business, started to draw rough pit sand. There was about three inches of that rolled into the road, about three inches of that rolled into the road and then it was sprayed, but it came as far as our property and stopped…

Q. Okay.

A. I have to say that between that and 2001 and before that, I never seen a council worker on that road, and I'm under oath. I never seen a council worker on that road up until 1978…”

87. Mr McDaid Senior’s evidence under cross-examination was that the Council “never did anything on” the stretch of road through their lands, the Disputed Road.

88. The evidence of the Plaintiff and Mr McDaid Senior was that maintenance work (including resurfacing work) done to the 12 Road in 1978 and drainage work done in the early 2000s did not include the Disputed Road. It was said that the Council never worked on that stretch of road and that it was instead maintained by the McDaids. Both the Plaintiff and his father confirmed that they had carried out the maintenance works on the road. This evidence that no work was done by the Council on the Disputed Road, and that the Road had been maintained by the McDaids, was not substantially challenged in cross-examination.

89. Mr McDaid Senior also stated that the Council had no documentary support of the works in 1978. The Plaintiff gave evidence to similar effect, both of them emphasising that the source of the monies for the works in 1978 could not be identified, as there was no record of those works.

90. Mr McMahon stated under cross-examination that he knew nothing about the works undertaken at the location (“I don't have any direct experience of those works, it wasn't part of my work remit back in time”) but also gave evidence that, “It is very clear, Judge, that the local authority has maintained large sections of the LT81012 historically, The issues around maintenance through the McDaid farmyard notwithstanding.”

91. Mr Alan Hall, senior engineer with the capital projects team in the Council, was the area roads engineer for the relevant area between 1999 and May 2014 and was familiar with the 12 Road.

He explained in his evidence in chief that drainage works were carried out on the 12 Road in 2000 but stated “I can't be sure if work was carried through the 150 metres that would pass through the McDaids' farm holding.” He then explained that resurfacing works were undertaken at the Road in 2001, but these works excluded the Disputed Road. His evidence was that this was because of the different uses of the Disputed Road – namely “greater wear and tear from vehicle movements, but also probably for environmental reasons.

Tarmacadam/bitumen would not stand up very well to the cow manure where there's farm activities going on.” He stated that different and more costly surfacing works that were therefore required and his evidence was that, “the surfacing would have to be at least 100, probably 150 millimetres deep. And there would be the danger that if we put the road surface in, that it would leave an unsafe edge on both sides of the road in the farm areas, and also then it causes ponding.” He explained that “kerb lines” would need to be installed to demark the edges of the road and provide structural support for the road.

92. Mr Hall confirmed under cross-examination that he had no direct knowledge of the works in 2000 or 2001 and agreed that PMS showed that no work was carried out and the Disputed Road “was not maintained or surfaced or drained between the year 2000 or 2001, whichever it is, and 2022”.

93. Mr Hall then gave evidence – based on his diary entries – about an engagement with Mr McDaid Senior on 7 April 2003, in which the latter was seeking pipes from the Council to carry out drainage works at the site. Mr McDaid Senior was emphatic in his evidence that no such pipes were received. This evidence was not contradicted (Mr Hall could not say whether the pipes were delivered, “I wouldn't be -- can't confirm if they were ever delivered”) and I accept the evidence of Mr McDaid Senior in this respect.

94. On the question of works done by the Council, Mr Hall was asked about a letter sent by Mr Kellett on behalf of Mr McDaid Senior in 2003, which referred to an agreement that Mr McDaid Senior would install a concrete border on the Disputed Road and the Council would then install a new bitumen covering on the Road. Mr Hall had no specific recollection of these matters, saying only they “may have been discussed” at a site meeting in the context of the 2003 Planning Application. Mr McDaid Senior gave evidence that this meeting did occur, but disputes that the agreement described by Mr Kellett was reached.

95. There were questions then put to Mr Hall in direct evidence about his diary record of a meeting on 13 February 2004 with Mr McDaid Senior. He described the purpose of the meeting in direct evidence as follows:

“The purpose of the meeting was to just agree the alignment and location of the public road and to agree what works would be needed to be carried out to allow the planning application to go forward, and then hopefully to allow for the successful completion of the road works.”

96. He further explained, “the purpose of this was to demarcate the planning application on the farm area from the public road area.” He could not recall the specifics of the meeting or the agreement however (“I can't remember the specifics but my recollection was that it was a -- that we had come to an agreement on what needed to be done”). He could not recall who had requested or organised the meeting and believed there was a third person there, but could not recall who: “My recollection of the meeting is that I met Mr. McDaid and somebody else - I assume from CS Pringles - but I just can't remember them.” Under cross-examination, his evidence that was he did not specifically recall discussions about the road width or alignment (“I don't have any direct recollection specifically on that”).

97. There was also some confusion about the date, as his diary and report recorded a different date to the date recorded in Mr Kellett’s letter (the latter referring to a meeting the previous day, 17 February 2004, whereas his diary referred to 13 February 2004). He did however state in direct evidence that he recalled that the meeting took place and that this was corroborated by his diary.

98. There is an apparent conflict of evidence here, as Mr McDaid Senior states in evidence that there was no meeting with Mr Hall and Mr Kellett in 2004: “I absolutely deny that I met with Alan Hall and Mark Kellett, absolutely. Absolutely” and “I am saying categorically it never, ever, ever happened.” He then proceeded in his evidence to focus on Mr Kellett not being present (“he did definitely not meet Mr. Hall with me, 100%, 100%” and “I am telling you straight out, Mark Kellett, myself and Alan Hall never met” and “I met Alan Hall, there's no question about that, I spoke to him about the road but I never met in my life Alan Hall along with Mark Kellett, never, under oath”). Mr McDaid Senior did not say he did not meet Mr Hall.

99. Mr Hall had no recollection of Mr Kellett being at the meeting and Mr Kellett himself did not give evidence. The only witness with any asserted recollection of who was or was not present at a meeting in February 2004 is Mr McDaid Senior and there is no reason to reject his evidence in this respect. What it leaves, however, is the possibility that the meeting was in fact attended by someone from CS Pringle who may not have been Mr Kellett. Therefore, the factual dispute may be more apparent than real, but in any event, given the decision of the Council not to call Mr Kellett (despite having intimated during the cross-examination of Mr McDaid Senior that he would give evidence), there can no inference that Mr McDaid Senior was incorrect in his clear recollection of the facts.

100. It is my view that the evidence indicates that there was a meeting involving Mr Hall and Mr McDaid (and possibly a third person such as Mr Pringle) at which there was a discussion about Mr McDaid Senior undertaking certain works at the road between the farm buildings in order to secure planning permission.

101. Mr Hall also addressed in his direct evidence the road condition report prepared by the roads section of the Council, dated 24 March 2004 and signed by him. This was for the purpose of formulating conditions to attach to the grant of planning permission and was signed by Mr Hall.

He confirmed in his evidence in chief that the references to the “public roadway” in that report included the Disputed Road. He also said in evidence that the report was included “to ensure that road safety, and to ensure that the road can be maintained, and that the interaction of this planning application and the proposed development will not interfere with the public road” and that “The purpose is to provide conditions to allow for safe planning permission.” The conditions proposed in that report on this basis were: “Alignment and location of county road as agreed at site meeting on 13th February '04. Road width to be not less than four metres in width”. The proposed conditions also discuss the installation of the kerb and the boundary work, all of which Mr Hall confirmed was in accordance with the agreement reached on 13 February 2004. Mr Hall confirmed that these conditions and language were reflected, broadly, in the grant of planning permission.

102. The alignment of the road was to be inspected by the Council, according to the planning conditions, but Mr Hall confirmed under cross-examination that he had no recollection or record of attending the site to do that. Mr McDaid Senior gave evidence that it never happened.

It is also of note that the purpose of the conditions, according to Mr Hall, concerned interference with a public road. This therefore linked the conditions to the road being a public road. In addition, while the report prepared by Mr Hall refers to the road as a “public road”, there is no evidence that the text of this report was furnished to Mr McDaid Senior or that the description of the Disputed Road as a “public road” or a “county road” was agreed or accepted by Mr McDaid Senior. There is no evidence that Mr McDaid Senior himself referred to the road as a “public road” during the meeting in February 2004. There is also no evidence that the Council took any further active part with regard to the works on the Disputed Road or the supervision of same.

103. Mr Kevin West, Acting Senior Engineer in Roads and Transportation section, gave evidence about the Pavement Management System (“PMS”) maintained on behalf of the Department of Transport. He explained in direct evidence about the 12 Road being on the PMS and on the road schedules and explained the condition rating given to roads. His evidence was that PMS disclosed that the Disputed Road was not worked on when the remainder of the 12 Road was upgraded in 2022. He was present when this work was being done to the 12 Road and stated that he met the Plaintiff at the site on 22 August 2022 and attempted to discuss the completion of the resurfacing works through the farmyard and the Council’s intention to resurface the Disputed Road. His evidence was as follows:

“Q. Yes. How did he react to that?

A. Not very well. He said: Under no circumstances are them works to happen, that he wouldn't be allowing it and that Monaghan County Council are trying to work over the McDaid family and he got very annoyed with the suggestion that we would be carrying out works on that section of road.”

104. The Plaintiff’s evidence was that Mr West said, “I am here to ask have you any objection of Monaghan County Council drawing a line of tarmacadam through your farmyard.”

105. Mr West disputed this account. He said the Plaintiff did not say it was a private road and that he did not ask for permission to surface the Road, stating that his view was that it was a public road and permission was not required. There was a direct factual conflict here, with Mr Hall saying the Plaintiff was “incorrect” to say he asked for permission to surface the Road. He said he knew there was a “planning issue” and “didn't want to start bringing a contractor into that to try to force our way in to do this work.”

106. While there is a disagreement between Mr West and the Plaintiff as regards what precisely was said at that encounter in 2022, I am satisfied that the evidence discloses that there was a discussion, that the Plaintiff refused to allow the Council to carry out works on the road and

that the Council did not proceed further. Those are the material facts and it is not necessary or fruitful to decide what precise words were used.

107. I am satisfied from the foregoing summary of some of the relevant evidence and from considering the evidence as a whole that the Council did not in fact do works on the Disputed Road in 1978, 2000/2001 or in 2022. Indeed, there was no evidence that the Council did maintain, or carry out works on, the Disputed Road at any time. This is important in the circumstances of this case – on the basis of Morrin - and in light of the case being made by the Council.

108. It should also be noted that Mr Cunningham was a witness called by the Plaintiff who gave evidence of works he had done on the Disputed Road (which he called “McDaids yard”) on behalf of the McDaids over 40 years, including resurfacing works in 1998; further works in October 2001 preparing the road for concreting; and additional works in 2015 resurfacing the Road with shale. He accepted under cross-examination that his specific recollection of these works was poor and he could not be sure whether it was the entire 150 metre stretch or parts of it only which he worked on. Nonetheless, his evidence demonstrates steps taken by the McDaids over the past 30-40 years to maintain and repair the Disputed Road.

Road closures

109. The Council caused a road closure notice dated 18 January 2018 to be published in the Northern Standard. This informed the public that access to the 11 Road via the Disputed Road was closed on 11 December 2017 (although the Plaintiff’s unchallenged evidence is that it was actually closed on 22 December 2017) “due to an emergency situation and in the interests of safety”. Mr McDaid Senior agreed that the reasons given for closing the Road were as stated by the sworn evidence of Mr Lennon (deceased):

"I told the respondent and his father that I was closing the road because there was no planning permission for the works which they had done and intended doing. No design certificates for the existing or proposed works were produced, no road opening licence had been obtained and no road closure application was made and as far as I was concerned, the road in its current state was a hazard to road users."

110. Mr McDaid Senior accepted in evidence that the Road has remained closed since that time. It is also not in dispute that the Road was closed temporarily in 2015. It is also not in dispute that the Plaintiff did not challenge the road closures.

111. The Council does rely on this as apparent evidence of an acknowledgement by the Plaintiff that the road was a public road.

Conclusions

112. The first question I need to decide is where the burden of proof lies. In Walsh and Walker it was clearly found that the burden of proving dedication rests on the party asserting it. In Walker, for example, the Court found at §78: “Whether or not there has been dedication is a question of fact to be decided upon a consideration of all the evidence adduced. The burden of proof of dedication lies upon the party alleging it.” The Court later reiterated that “The onus rests with the appellants to show that the evidence adduced was sufficient to lead the trial judge to a conclusion that on the balance of probability the owner of the property dedicated a right of way over his lands to the public” (at [85]). On that basis, the burden must be on the Council to show the existence of a public right of way and that it was taken in charge. This is so regardless of the manner in which the issue arose on the pleadings and no point to the contrary was raised by the Council.

113. In this case, there is no question of an express dedication of a public right of way, so the overarching question is whether dedication of the public right of way can be inferred from the facts.

114. The case advanced by the Council here is that the evidence dates back 60 years and the question of “living memory” (which arose in Walsh) did not expressly feature in the evidence in this case. No submission was made by the Council to the effect that the public user was over living memory. On the contrary, the Council dismisses as “speculation” the evidence presented on behalf of the Plaintiff as regards the events of 1834 and the use of the right of way at that time. It is said that there is “no evidence before the Court other than family anecdotes” of matters including “the use of the road initially or otherwise” (closing submissions at [5]). More specifically, the position of the Council is that “evidence was given of public use for the previous 60 years” (closing submissions at [19]). So, the case advanced by the Council is that the only evidence before the Court is that there was dedication of the public right of way over the past 60 years. There is no case made that there was public user as of right throughout living memory.

115. Another matter that must be clarified is that only question I have to decide is the status of the Disputed Road, a 150-metre stretch of road between the 12 Road and the 11 Road through the Plaintiff’s farmyard. This case is not about the status of the 12 Road or the 11 Road. While there was evidence on behalf of the Council that the 12 Road was not subdivided in that manner

(based on the road schedules and maps), the Disputed Road was the specific subject of the evidence of the witnesses called by the Council and it is a stretch of road that is also distinguishable on the Council’s own evidence because it is surfaced differently. Moreover, by contrast with the remainder of the 12 Road, there is no evidence that the Disputed Road was resurfaced or worked on by the Council at any stage (not in 1978, 2001, or 2022). Indeed, a letter sent on behalf of the Council on 14 May 1997 and put to Mr McDaid Senior in evidence states that the “section of the above road… would appear to be used only as a farm access road” and the Council therefore refuses to supply pipes for its drainage. The evidence in the case is all entirely focussed on the specific use of the 150m stretch of road. Regardless of whether it would be typical for the Council to treat the Disputed Road as a separate road, I am satisfied that there are grounds to treat and characterise this 150-metre stretch of road distinctly from the remainder of the 12 Road on the basis of the evidence presented in this case.

116. With regard to the use of the Disputed Road, it is my view from observing the factual evidence of the three users of the Road presented by the Council that each of the witnesses was credible and none of them attempted to overstate their use of, or knowledge of the use of, the Disputed Road. However, the evidence - even taken fully at face value - discloses a limited use of the Road. While Mr Keenan used the Disputed Road most extensively of the three witnesses, I am satisfied that the use of the Disputed Road by Mr Keenan, his family, guests and his predecessors in title, is based on a specific private right of way that was created with the subdivision of the Donaghy Lands for the specific use of the adjoining landowners. I accept the evidence of Mr McDaid Senior which was impressively comprehensive in detailing this history.

This background is an important factor in this case.

117. Other than Mr Keenan, the evidence of use of the Disputed Road is limited to Mr McConnell and Mr Duffy. Mr McConnell’s evidence at its height is of intermittent use to access the 11 Road if it was the more direct route from his property, or if he had a specific need to transport a large vehicle to the 11 Road. Mr Duffy’s evidence is less relevant, given he only resided there as a child, having left the area in 1970 and only attended 3 or 4 times a year since. This very limited, finite category of persons who gave evidence of ever using the Road are all near neighbours of the McDaids and cannot be regarded as the “public at large”. This is a highly relevant factor, based on Walker.

118. I am also very mindful of the caution in Walsh not to discourage neighbourliness. In light of the very limited evidence given and the nature of the uses of the Disputed Road outlined in the evidence, I am of the view that it would have been churlish of the McDaids to prevent the use of the Disputed Road that was described in evidence. Landowners should not be encouraged to engage in a fortress mentality by blocking off access routes that may be intermittently convenient for a limited, finite number of neighbours. The evidence presented does not demonstrate a use by the public at large of the Disputed Road.

119. In short, applying the applicable legal principles, I am not satisfied that the user has been shown to be of sufficient volume, extent, frequency or duration to warrant an inference of dedication of a public right of way.

120. Turning to the other factors relied upon by the Council, insofar as the Council relies on public expenditure, there is no evidence of actual expenditure of public monies on the Disputed Road.

On the contrary, the evidence shows that the works done to the 12 Road in 1978, 2000, 2001 and 2022 did not extend to the Disputed Road and the McDaids themselves instead maintained and carried out works on the Disputed Road. On the basis of Morrin, this points away from the road being a public right of way.

121. The Council relies on the representations made in, and in the context of, planning applications, to support the inference of an intention to dedicate a public right of way. While I have had regard to those representations, I do not believe they can suffice to create the inference contended for, in the absence of a sufficient actual user of the Road by the public at large. Even if the documentation did show an intention to dedicate (which I do not believe it does), there is a want of evidence of acceptance of that dedication by either the public at large or the Council (particularly given the latter did not in fact expend monies on the Road).

122. As regards the road closures, I do not accept that these demonstrate an intention by the landowner to dedicate the Road, rather than compliance with the exercise of the Council’s statutory powers.

123. In short, there was certainly a lack of consistency by the Plaintiff and his predecessors in title as regards the status of the Disputed Road and the role they wished the Council to take with regard to it. However, there is not sufficient evidence to ground an inference that the Plaintiff (or his father) intended to dedicate the road as a public right of way or that this was accepted as such by the public at large. I am not therefore satisfied that the Disputed Road is a public right of way.

124. Given this finding, it is not necessary to proceed to determine whether the Disputed Road was taken in charge by the Council. However, lest I be wrong in my primary findings, I will address this issue.

(B) WHETHER THE DISPUTED ROAD WAS TAKEN IN CHARGE BY THE COUNCIL

125. It cannot be disputed that the burden was on the Council to demonstrate that the Disputed Road was taken in charge and was a public road and no such dispute was raised at the hearing or in submissions. However, the Council’s case as to when and how it asserts that this Road was in fact taken in charge is somewhat unclear. The written submissions of the Council state that “The process for taking roads in charge has varied since its creation initially under the Grand Jury (Ireland) Act 1836 to its current iteration in s 11 of the Road Acts 1993. However, it was pursuant to the Local Government Act 1953 the disputed road was first taken in charge”. A somewhat different position was advanced in closing written submissions: “It is the Defendant’s case that the road was taken into charge either pursuant to the Grand Jury (Ireland) Act 1836 and prior to 1925, or that a public right of way was created by dedication over the disputed road, which the Council subsequently took in charge”.

126. Mr McMahon was the Council’s primary witness on these questions, being Assistant Director of Services and Transportation in the Council, previously an engineer with the Roads section, and now being responsible for the Council’s statutory functions regarding roads, including taking roads in charge and closing public roads.

127. Mr McMahon accepted that the Disputed Road was created as a private road and that there is “nothing that shows” the taking in charge of the Disputed Road on a statutory basis. Indeed there was no dispute that the Defendant does not have any documentation evidencing how or when the 12 Road (or any part of it) was taken in charge.

128. Mr McMahon further explained that he carried out searches regarding the process by which the 12 Road became a public road, concluding that it was “very likely that this road was inherited as a public road through the process of presentment.” There was however no evidence of the presentment sessions. Mr McMahon fairly accepted during his evidence in chief that his evidence on this point was speculative. I do not believe it is sufficiently probative to assist in forming any view about the Disputed Road being a public road.

129. I do not see any evidential basis to determine as a matter of probability that the Road was taken in charge before 1953 and, while it is not clear that the Council was advancing a case that it was, I confirm for the avoidance of doubt that it has not been shown that the Disputed Road was taken in charge prior to the enactment of the 1953 Act. The evidential grounds relied upon by the Council in these proceedings to show the road was taken in charge (such as the road schedules and the intervention of the fire) are not available pre-1953. It is not surprising that

the focus of the Council was instead on the road having been taken in charge subsequent to the 1953 Act.

130. For completeness, there was a dispute as to whether the width of the road was a relevant factor (the Plaintiff asserting that, if the road was taken in charge prior to 1953, it must be 16 feet in width). Given the findings just made, the issue around the width of the road is not one that needs to be decided.

131. Turning then to the primary case of the Council: the case made is that the road was a public right of way and was then taken in charge under the 1953 Act.

132. Section 2 of the 1953 Act provides,

“(1) Notwithstanding anything to the contrary contained in section 25 of the Local Government Act, 1925 (No. 5 of 1925) or in any other enactment a road authority is hereby empowered to declare any road over which a public right of way for foot passengers, animals and vehicles exists and which is not a public road to be a public road, if such road authority is satisfied that the road is of general public utility, and every road so declared to be a public road shall thereupon for all purposes be a public road.

(2) Not less than one month before making any such declaration as is mentioned in the foregoing subsection the road authority shall publish in at least two newspapers circulating in their functional area notice of their intention to consider the making of such declaration and such notice shall contain such particulars as may be prescribed.

(3) The making of a declaration under subsection (1) of this section or under subsection

(1) of section 25 of the Local Government Act, 1925 (No. 5 of 1925), shall be a reserved function within the meaning of the County Management Acts, 1940 and 1942.”

133. There are a number of requirements that must be satisfied for a road to be declared to be a public road under that provision.

134. Before considering these individually, it must be emphasised that the Council fairly accepts that there are “no records of the Council’s compliance with the formal requirements of the 1953 Act to take the disputed road in charge” (written submissions at [45]). Turning then to the separate criteria of the 1953 Act:

135. First, a public right of way for foot passengers, animals and vehicles must exist over the road.

As I have already found that it has not been shown as a matter of probability that the Disputed Road is or was a public right of way. The Council’s case fails on this basis.

136. The second requirement is that the road must not be a public road. As just observed, the position of the Council as to whether the road was a public road before 1953 is uncertain. Mr McMahon – the individual with responsibility for taking roads in charge at the Council - believes it is “very likely that this road was inherited as at public road through the process of presentment”. While there was no evidence to support this, it demonstrates that the Council is of the view that the road was already a public road, which would have undermined any reliance on the 1953 Act by the Council.

137. Third, the road authority must form the view that it is satisfied that the road is of “general public utility”. I have seen no evidence of any assessment by the Council as to whether the Disputed Road was of “general public utility” and no evidence was given of a discussion,

decision or resolution to that effect. A similar question arose during the evidence of Mr McMahon in the context of the Section 11(5) Certificate. The following exchange then occurred:

“Q. Did the road authority satisfy itself that the road is of general public utility?…

A. Judge, in regards to this certificate I was not involved in the drafting of the certificate, and I'm not aware of what background research was done or conducted by Patricia Monahan, or on her behalf, in regards to this certificate. I've got no knowledge to add, other than what I already said.”

138. Patricia Monohan did not give evidence. In fact, there was no evidence at the hearing to show the Council formed a view under either the 1953 or the 1993 Act that it was a matter of “general public utility” that the Disputed Road should be taken in charge or the grounds or reasons for that view. On the contrary, Mr McMahon’s evidence was that there was “nothing that shows”

the taking in charge of the Disputed Road on a statutory basis. The Section 11(5) Certificate will be considered further below.

139. Fourth, at least one month before making a declaration under section 2(1), the authority must (“shall”) publish in at least 2 newspapers circulating in their functional area notice of the intention to consider making such a declaration and the particulars as may be prescribed must be in that notice. It is a surprising feature of this case that no copy of any newspaper notice published in compliance with this mandatory statutory requirement has been located. Mr McMahon explained,

“So we searched through various archives, including publish -- in local newspapers, we have checked those archives to see whether or not the road was taken in charge by, with a public notice attached to it, either through the provisions of the '93 Act, the '53 Act, or indeed the 1925 Act, and we have not been able to come up with any such notice in a public newspaper.”

140. The final criterion of the 1953 Act is that the declaration is a reserved function within the meaning of the County Management Acts, 1940 and 1942. It must therefore be “exercised directly” by the Council (section 16 of the County Management Act 1940). As noted, there is no evidence of a minute of a meeting or any other action or consideration of the Council regarding taking the Disputed Road in charge.

141. To overcome the absence of any evidence of compliance with the requirements of section 2 of the 1953 Act, the Council relies on five points:

142. First, the Council asserts that there were works done on the road in 1978, 2002 and 2022. I have already found that there was no evidence of the Council undertaking work on the Disputed Road. The evidence in this respect does not support the existence of a public right of way. It also does not evidence or support the case that the Council did in fact take the Disputed Road in charge.

143. Second, the Council places heavy reliance on the road schedule, which includes the full 12 Road and has done for several years (since 1965). There was considerable discussion and evidence at the trial about the road schedule. The Plaintiff challenges the validity of the schedule on the basis that it was not signed, sealed or dated. There appears to be a fair point in this respect. However, the most salient point is that the Council accepts that it cannot create a public road or take a road in charge by means of a road schedule. It only reflects the Council’s view as to which roads are public roads. At best, the schedules are evidence that the Council was of the view that the entire 12 Road was a public road since 1965, but no more. Accordingly, the schedule is of limited value in answering the question of whether the Disputed Road was in fact taken in charge by the Council pursuant to the 1953 Act.

144. Third, the Council alleges that important documents may have been lost in a fire in Monaghan courthouse in 1981. Mr McMahon stated in evidence that “[t]o my knowledge, and from the investigations that I have made, the primary legal documents of the Council were retained in that building.” He did not state that specific documents evidencing the taking in charge of the Disputed Road under the 1953 Act were lost. A similar proposition was rejected in Walker:

“83 Dedication is a question of fact and can be inferred from the evidence. Though a witness for the appellants, Mr. Goodbody, suggested that records of any express dedication of a public right of way could have been destroyed in the fire at the Four Courts on 30 June 1922. However it is clear that this was an exercise in conjecture there being no evidence that the disputed way had been the subject of an express dedication.”

145. The evidence here is merely that documentation “may” have been lost. It is an exercise in conjecture and is not evidence that such documents existed. Moreover, the process for taking a road in charge under the 1953 Act included the publication of notices in two local newspapers and the fire does not explain the inability to locate a copy of any such notice. Reliance on the fire is not persuasive. I am not satisfied that the fact of the fire overcomes the evidential gaps that exist in the Council’s case.

146. Fourth, the Council deploys the maxim of omnia preasumuntur rite esse acta, otherwise known as the “presumption of regularity”. It is said that, in light of the evidence that the Council “intended” to take the road in charge and acted as if it was a public road, that the Court should presume it complied with all necessary formalities. The Council relies on Clark v. Early [1980] IR 223 and on Re Delahunty [2021] IEHC 657. The Council also relies on Martins v. Minister for Justice and Equality [2018] IEHC 268 as evidence that the maxim applies beyond the private law setting.

147. In Clark v. Early, O’Higgins CJ found that, “[t]o apply the maxim omnia praesumuntur rite esse acta it is necessary, in my view, that two conditions be observed. In the first place an intention to do some formal act must be established. In the second place there must be an absence of credible evidence that due formality was not observed.” That case (in common with the majority of cases in which the presumption has arisen) was a probate case. It concerned difficulties in proving the execution of a will, in circumstances where neither witness was living and there was no evidence to verify the signature of the executor. The Supreme Court found that there was not sufficient evidence of an intention to do some formal act and the maxim was not applicable. The Supreme Court upheld the refusal of the High Court to admit a handwritten document to probate on this basis. This shows the strict approach that must be taken to the application of the presumption, even in the probate context in which it most commonly arises.

148. The most comprehensive treatment of the presumption can be seen in the decision of Butler J.

in Re Delahunty. This was also a probate case and the Court ultimately concluded that there was ample circumstantial evidence to demonstrate an intention to execute a will and that the executor attended at his solicitor's office and executed the will and that, notwithstanding the absence of direct evidence of execution or attestation, the principle of regularity applied. The opening description of the presumption is instructive:

“Personally, I dislike resort to Latin maxims the meaning of which is no longer immediately apparent to a generation of lawyers who came through the educational system when, not only was Latin no longer a compulsory subject, but it was one which was not available in most Irish schools. Consequently, for the balance of this discussion, I will refer to the presumption of regularity. This makes it clearer that, like any presumption, it requires sufficient evidence of a state of facts to raise it and it can be rebutted by sufficient contrary evidence. There is, of course, still scope for dispute as to what standard of evidence is sufficient in either case and whether that evidence has been adduced in the particular case” (at [9]).

149. I agree with and gratefully adopt those views of Butler J. She proceeded to explain various features of the presumption. These may be broken down as follows:

(a) The presumption “allows a court to close an evidential gap regarding the formalities of an act which, on the available evidence, the court is otherwise satisfied was properly done”

(at [10]).

(b) The presumption cannot be used to contradict available evidence: if there is credible evidence that the formalities were not observed, it would be inappropriate to presume that they were (at [15]).

(c) “An absence of evidence of something is not, of itself, evidence that the thing did not happen. As I put it in a different context, an absence of evidence is not the same thing as evidence of absence.”

150. The overarching question is whether – save for the absence of proof of compliance with “formalities” - the court is otherwise satisfied the act was properly done.

151. In the other judgment cited by the Council – Martins v. Minister for Justice and Equality – there was no discussion of, or submissions based on, the presumption. The Court mentioned the presumption in one line as a presumption that could hypothetically apply to unspecified decisions, but did not purport to apply it. It does not advance the Council’s case.

152. Turning to this case, the first and fundamental point that must be noted is that the application of a presumption of regularity to overcome the absence of proof that a public body complied with any of the cumulative mandatory statutory pre-conditions to the exercise of a statutory power would be far-reaching and potentially dangerous. In a case such as this one, it would involve the court deciding to forgive or overlook the failure or inability of a public body to show that it complied with any of the several requirements which the Oireachtas decided to impose as constraints on the exercise of a public power. It is – unsurprisingly – a proposition for which no relevant authority was identified by the Council.

153. Even if the presumption could in theory apply to a public statutory power (which I have grave reservations about), the nature of the power here and the constraints on it, make this a case in which the presumption is fundamentally inappropriate. This is because the conditions for the taking in charge of a road by a local authority include a formal resolution by the Council itself (as a reserved function) that the taking in charge of the road is a “matter of general public utility” and the publication in two newspapers in the relevant area of advance notice of the proposal to consider that resolution. The purpose of these requirements is to ensure that the Council has proper regard to the public interest and public utility before making such a decision and that those members of the public with an interest in the proposed decision have an opportunity to make representations and be heard before the decision is taken. These are not technicalities, but important statutory constraints on the power that is conferred on local authorities.

154. Further, if it could be said that the presumption was available in principle (which is not my view), I am not satisfied that it could avail the Council here for several reasons. First, I am not aware what evidence of an intention to take the Disputed Agreement into charge is relied upon.

As already noted, contrary to the position represented by the Council, there was no evidence that the Council did works on the Disputed Road in 1978, 2000, 2001 or 2022 and there is correspondence from the Council describing the Disputed Road as a “farm access road” in 1997 and refusing to supply pipes for its drainage. Second, the relevant evidence presented by the Council at the hearing before me was the evidence of Mr McMahon and what he said was that there was “nothing that shows” the taking in charge of the Disputed Road on a statutory basis. Third, the failure to locate any copy of a notice published in any newspaper is hard to understand, is not explained by the fire, and is not otherwise accounted for. There is simply nothing in the documentary or oral evidence to reach the threshold of deciding whether a presumption may fill an evidential gap. The presumption of regularity is not applicable here as a matter of principle or of evidence.

155. The fifth point the Council makes to demonstrate the road was taken in charge relies on the Section 11(5) Certificate. This Certificate was issued on 14 August 2019 – a matter of weeks after the Council commenced proceedings for the Plaintiff’s attachment and committal. It states that the Council “hereby certifies that local road LT81012 part of which goes through the townland of Beagh, Donaghmoyne Carrickmacross in the County of Monaghan is a public road.” The Certificate is signed by Patricia Monahan, Deputy Chief Executive Officer of the

Council. The Council relies on the Certificate as prima facie evidence that the Disputed Road is a public road.

156. Section 11 of the 1993 Act provides,

“(1) (a) A road authority may, by order, declare any road over which a public right of way exists to be a public road, and every such road shall be deemed to be a public road and responsibility for its maintenance shall lie on the road authority.

(b) Where a road authority proposes to declare a road to be a public road it shall—

(i) satisfy itself that the road is of general public utility,

(ii) consider the financial implications for the authority of the proposed declaration,

(iii) publish in one or more newspapers circulating in the area where the road which it is proposed to declare to be a public road is located a notice indicating the times at which, the period (which shall be not less than one month) during which and the place where a map showing such road may be inspected and stating that objections or representations may be made in writing to the road authority in relation to such declaration before a specified date (which shall be not less than two weeks after the end of the period for inspection),

(iv) consider any objections or representations made to it under paragraph (iii) and not withdrawn.

(2) The consideration of objections or representations and the making of an order under subsection (1) shall be reserved functions.

(3) The Minister may prescribe criteria for the declaration of roads to be public roads and a road authority shall comply with any such prescribed criteria when exercising its functions under this section.

(4) Every national road, regional road, motorway, busway and protected road shall be a public road and it shall not be necessary for a road authority to make an order under subsection (1) in relation to any such road.

(5) A certificate of a road authority that a road is a public road shall be prima facie evidence thereof.”

157. The requirements contained in section 11 for the declaration of a road as a public road are similar to those contained in section 2 of the the 1953 Act and hinge on the exercise of reserved functions by the Council based on it being satisfied that the road in question is “of general public utility”. There must also be notices of the intention to exercise the powers conferred by section 11 in at least one local newspaper.

158. The Council did not to call the signatory of the certificate – Ms Monahanto give evidence.

The witness for the Council with responsibility for taking roads in charge, Mr McMahon, stated in his evidence that “Judge, in regards to this certificate I was not involved in the drafting of the certificate, and I'm not aware of what background research was done or conducted by Patricia Monahan, or on her behalf, in regards to this certificate. I've got no knowledge to add, other than what I already said.”

159. The Plaintiff gave evidence of a letter received from the Council via email on 15 October 2019 signed by Paul Clifford, Director of Economic Planning and Emergency Services at the Council (in response to a freedom of information request) which states,

"In relation to your request, I wish to confirm that Monaghan County Council did not ever make an order pursuant to section 11(1(a) of Roads Act 1993 in respect of local road LT81012. Consequently, there are no notes, communications or memoranda in written or electronic form between the Members of the Executive and/or the elected members of Monaghan County Council in respect of the Council considering or demonstrating that it was satisfied that the road in question is of general utility or that it ever considered the financial implications for the Council. No notice pursuant to section 11(1)(b) of the Roads Act 1993 was published in respect of this road, no objections or representations were invited or received and no meeting was held in relation to the matter."

160. It is said in submissions that the Certificate does not hinge on the section 11 procedure, but was merely confirmatory of the existing position, that the Disputed Road was a public road.

However, it is a document which needed to be explained. There are obvious questions as to how and why the certificate came to be issued and relied upon by the Council in proceedings – including criminal proceedings - against the Plaintiff. No such evidence was provided. Neither Mr Clifford nor Ms Monahan was called as a witness. I do not accept that, if the road was not otherwise shown by the Council to be a public road, a certificate under section 11(5) can have the effect contended for by the Council (particularly absent compliance with any of the requirements of section 11. I do not believe any weight can be attached to this document and I have no regard to it.

161. I therefore find that it has not been shown that the Disputed Road was taken in charge by the Council. For completeness, the expert witness for the Plaintiff, Mr Furey, addressed this point, but the Council opposed weight being attached to his evidence on the question of whether the road was taken in charge. Given the findings that have been made, I have not considered it necessary to have regard to any expert evidence on this point and do not do so.

(C) ALLEGED RELEVANCE OF ENFORCEMENT PROCEEDINGS

162. The Council emphasises that these proceedings were issued in the wake and context of litigation concerning an underpass that was constructed by the Plaintiff under the Disputed Road. The Council asserts that the Plaintiff altered his position concerning the status of the Disputed Road in light of that litigation and with a view to bolstering his prospects of securing planning permission to retain the underpass. This characterisation is heavily disputed by the Plaintiff who insists he always regarded the Road as a private road.

163. It is apparent that there has been an unfortunate and complicated litany of litigation and disputes between the Plaintiff (and his father) and the Council. I do not regard this history to be of direct or meaningful relevance to these proceedings, but summarise some of the evidence given at the hearing to give a sense of the time, effort and resources (not least public funds) that have been expended to date regarding this 150 metre stretch of road through the Plaintiff’s farmyard.

164. From the evidence of Mr McDaid Senior, it is apparent that there was work done in 2017 on the construction of the underpass to allow cattle to pass from one side to the other which involved digging up the Disputed Road.

165. It appears that there was a site visit by a Mr Craig Connolly on behalf of the Council on 8 December 2017 at which he instructed the Plaintiff and his father not to carry out any excavation works without planning as it was beneath a public road. This is based on an affidavit sworn by Mr Connolly which was put to the Plaintiff. Mr Connolly did not however give evidence and I was not given any basis or reason to treat the affidavit as admissible evidence of itself.

166. The Plaintiff did give evidence that he continued doing works excavating the road despite being told by Mr Connolly not to do so. He said in his evidence that he did this on the basis that the road was not a public road and that planning permission was not required.

167. Mr John Lennon, an agent of the Council, then attended at the side with Mr Connolly on 11 December 2017 and they noted that excavation works had been undertaken and informed the McDaids that the Council was closing the Road. An affidavit sworn by Mr Lennon in the context of the enforcement proceedings detailing these alleged events was put to Mr McDaid

Senior in evidence. Mr Lennon is since deceased and, on that basis, his affidavit was put to Mr McDaid Senior and no objection to same was raised on behalf of the Plaintiff.

168. A letter was then sent by the Council on 11 December 2017 to the Plaintiff and his father stating,

“It is an offence under section 13 of the Roads Act to excavate a public road without having first obtained the consent of the Road Authority, in this case Monaghan County Council. In addition, the work which you are carrying out is a development within the meaning of the Planning Act and requires planning permission under section 34.”

169. In that letter, the Council asked them to restore the public road to the condition it was in prior to any works; provide an indemnity to the Council; to desist from carrying out any further works; and, to make an application for planning permission if they wish to proceed with the construction. The letter stated, “The Council are considering whether or not they should bring prosecution proceedings against you for offences under the Road Acts and the Planning and Development Acts.” Access via the Road to the 11 Road was then closed since December 2017.

There appear to have been further site visits in December 2017.

170. In an email dated 2 January 2018 and with a signature line by both the Plaintiff and Mr McDaid Senior, it is complained that the Disputed Road appeared to have been abandoned by the Council. That email also requested the meet the Council to “chart a way forward which would include MCC again taking responsibility for this section of roadway”. The Council interpretation is that this demonstrates an acceptance and awareness that the road was a public road. The Plaintiff’s evidence is that the purpose of the January 2018 letter was that he “wanted a meeting,” not to acknowledge the road was a public one and he insisted that the reference to “abandonment” was to the abandonment of the Council’s duties and not a public road. He also said in evidence that the reference to the Council “again taking responsibility”

was a mistake. I find the language of the letter, as explained by the Plaintiff, to be more ambiguous that the Council contends and do not regard it as a concession that the Road was a public road. When it was put to Mr. McDaid Senior in cross-examination that this email of 2 January 2018 was the first time he sought to dispute that it was a public road and that this was for the purpose of resisting enforcement proceedings, he answered, “No, it's not right, it's not right” and that it was “untrue”.

171. In June 2018, the Plaintiff’s application for retention planning permission was refused by the Council on the ground that the address was incorrectly stated on the application as it did not comply with the official Irish place names code.

172. The Council issued proceedings under section 160 of the Planning and Development Act 2000 in the Circuit Court which resulted in the Council obtaining orders to the effect that the Plaintiff must remove the underpass from beneath “the public road”. The Plaintiff in his evidence continued to maintain that the road was not a public road. The Council then issued criminal proceedings in the District Court under the Roads Act 1993. This prosecution was withdrawn by the Council on 5 July 2019. According to the Plaintiff, this was because he challenged the reliance on the Public Services Order 1946 and the Council could not prove the Road was a public road. According to the Plaintiff, a matter of days later, the Council commenced proceedings for the Plaintiff’s attachment and committal on foot of the section 160 proceedings.

These were listed before the Circuit Court in Letterkenny in Donegal on 25 July 2019.

173. On that same date, the Council informed the Plaintiff that an application for retention planning permission was invalid as it should state that the structure was under a public road.

174. On 14 August 2019, Patricia Monahan, Deputy Director of Service of the Council, issued the Section 11(5) Certificate certifying that “local road LT81012 part of which goes through the townland of Beagh, Donaghmoyne, Carrickmacross in the County of Monaghan is a public road.” The Plaintiff states in evidence that this was relied upon in the attachment and committal proceedings, most recently on 20 January 2021 in Cavan Circuit Court.

175. The Plaintiff’s evidence was that he submitted a further application for retention planning permission in September 2019 which the Council also found to be invalid, on the ground that it needed to state that the underpass was under a public road.

176. A further application for retention planning permission was made in October 2019. The Plaintiff’s evidence was that he did ultimately (and reluctantly) state on this application that the road number was LT81012 which he “totally did not want to do, in order to have the application validated”. The Council then refused permission because the underpass was beneath a public road. This decision was upheld by An Bord Pleanala and, according to the Plaintiff’s evidence, when he issued judicial review proceedings (which he says included a challenge to the section 11(5) certificate), the Bord “conceded on all issues in relation to it”, the decision was quashed, and the Plaintiff was awarded his costs by order of the High Court of 25 June 2024.

177. The Plaintiff’s account of these events was not substantively challenged in cross-examination.

These events are not of material relevance or assistance in deciding the issues before me. They do however provide relevant context to the allegation of laches that is advanced by the Council, which is next considered.

(D) LACHES/DELAY

178. The Council’s position is that the status of the road became an issue in 2017; that it was not until 2019 that the Plaintiff asserted the Disputed Road is a private road; and that, given his evidence that he always regarded it as such, he is guilty of delay in not issuing these proceedings until October 2021. It is said that the Plaintiff has had the benefit of public funds and that it is unconscionable that he did not proceed sooner. Reliance is placed on JH v. WJH. (Keane J.,

20 December 1979).

179. The facts that appear to me to be relevant are that it was first in December 2017 that a contentious issue emerged with regard to the Disputed Road. From then, the Plaintiff submitted multiple applications for retention planning permission and was party to multiple legal proceedings (including ongoing criminal proceedings), in which – the evidence shows – the question of whether the Disputed Road was a public road looms large. So, while the Plaintiff’s position is that the road was never a public road, this question only became a live one in light of the various enforcement actions outlined above and it was an issue that could have been addressed and resolved in those contexts, although this did not ultimately happen. The evidence also shows attempts by the Plaintiff to engage with the Council (including in early 2018), but that appears not to have been fruitful.

180. Against that background, the Council issued the Section 11(5) Certificate in 2019. The Council has chosen not to explain the circumstances of, or reasons or justifications for, the issue of that Certificate. However, Mr McMahon’s evidence makes it plain that the Council has itself for some time been attempting to ascertain the true factual and legal situation with regard to this Road, including carrying out “quite extensive searches”. The status of this Road was not a straightforward question and I do not believe the Plaintiff can be faulted for not issuing these proceedings earlier than he did (particularly given the multiplicity of other proceedings to which he was or had been party).

181. It is also important to repeat the finding that no public monies were expended on the Disputed Road and I fail to see how unconscionability or unfair advantage can be asserted against the Plaintiff. I note the Council also relies on prejudice to users of the Disputed Road. I do not accept this is a relevant factor, given the findings that the Road has been used as a private right of way by the occupants of the Donaghy Lands and that this neighbourly use of the Road is not evidence of a public right of way. I have found that the McDaids have been and should be encouraged to be reasonable and accommodating to their neighbours and should not adopt fortress mentalities for fear of public rights accruing over their lands. This is an important

factor in the judgments in Walsh and Walker and undermines any suggestion of prejudice to those neighbours.

182. In all of the circumstances, I reject the allegation of delay against the Plaintiff in the issue of these proceedings.

183. A further allegation was made at the hearing that the Plaintiff comes to court with unclean hands. The authority cited is Board of Management of Wilsons Hospital School v. Burke [2023] IEHC 22. Given the findings made in this judgment, I see no merit to this point.

(E) ESTOPPEL

184. The Council contends that, if the road is not found to be a public road, the evidence demonstrates that the Plaintiff and his father have, either themselves or through their agents, repeatedly characterised the disputed road as a public road and that this was relied upon by the Council in granting planning permission. The Council places particular reliance on planning applications which were filed on behalf of the Plaintiff (and his father) and correspondence accompanying and related to same. The Council contends that the Plaintiff is estopped from denying that the Disputed Road is a public road. This case was advanced as a very subsidiary ground of defence by the Council and was referenced only in passing by the Plaintiff. No authority on the law of estoppel was opened during the hearing.

185. In its written submissions, the Council relies on Charleton J. in Ulster Investment Bank v.

Rockrohan Estate Ltd [2015] 4 IR 37 §26: “For estoppel to arise, it is essential that there is conduct which establishes an objective state of affairs, whereby the party to be estopped, who would otherwise be bound by the legal relations, is placed in circumstances whereby it is clearly understood that a new state of affairs governs the rights and obligations as between the parties. This requires some demonstrable action, behaviour or representation by the party who is to be bound by the altered state of affairs. It is insufficient, to establish estoppel, merely for the party later pleading that defence to conclude that matters must be so. There must, instead, be a foundation in the behaviour of the party who is to be estopped from asserting a legal entitlement, either pursuant to contract or otherwise.”

186. In this case, the evidence discloses a degree of inconsistency on both sides as regards the use of, and responsibility for, the Disputed Road. There were representations made on behalf of the Plaintiff and his father that the Disputed Road was part of the public road. However, the true situation was not a simple, binary matter. This is illustrated by the absence of clear evidence that the Council regarded the Disputed Road as being within its charge at all times or

as to when the Council asserts that it formed the view it was a public road or took formal statutory steps to declare it a public road.

187. The decision in this case was based, following the clear authority of the Supreme Court in Walsh, on an assessment of all relevant circumstances. Given the nuanced factual assessment that was and needed to be carried out in this case, I do not believe the criteria of estoppel can properly arise.

188. More importantly perhaps the defence of estoppel that is attempted in this case, could have the effect of requiring the Plaintiff to accept that the road is a public road, despite the findings in this judgment that it has not been shown on the evidence that the road was a public road. This would result in an uncertain outcome, as it would only properly operate inter partes, with the Plaintiff alone being precluded from disputing that the road is a public road, and no clarity as to what this means for the Council or the public. There is no counterclaim by the Council (by contrast with Walsh), so the decision sought by the Council would be a denial of the reliefs sought by the Plaintiff, but no affirmative order. There are obvious questions as to whether and how an estoppel in these circumstances would operate and whether it would or could impose new burdens on the Council. None of these issues were addressed during the hearing of these proceedings.

189. It must be recalled that it is a reserved function of the Council under the 1953 Act and the 1993 Act to declare a road to be a public road and specific mandatory requirements must be satisfied before this can be done.

190. If a finding of estoppel would impose obligations on the Council, this would occur despite the findings in this judgment that the requirements of the 1953 Act have not been satisfied and the road has not been shown to be a public road. It could impose obligations on the Council without any evidence that the Council had exercised its reserved functions under the 1953 Act (or otherwise) or considered or determined whether this was a matter of “general public utility”.

There would also be no publication of the intention to convert the road into a public road, contrary to the mandatory statutory requirement in section 2 of the 1953 Act or section 11 of the 1993 Act. I would be concerned that any recourse to the doctrine of estoppel in the circumstances of this case would be wholly inappropriate and could result in the circumvention of the mandatory, reserved statutory functions conferred on the Council by the 1953 Act. It would also create real uncertainty as to the status of the road vis-à-vis persons other than the Plaintiff.

191. I reject the argument based on estoppel.

(F) DAMAGES

192. One of the reliefs sought by the Plaintiff is an award of damages. Reliance was placed in closing written and oral submissions on Barlow v. Minister for Communications, Marine and Natural Resources [2025] IESC 14.

193. It was submitted that a duty of care arises because of what the Council has done in this case and the basis for that submission was the “unreasonable” behaviour of the Council with specific reference to the Section 11(5) Certificate and the closing of the road in 2017. The Council correctly points out in reply that there is no pleading in this case related to a duty of care, breach of contract, or negligence, and no pleading that the closing of the road was negligent or unlawful. It is also said that there is no particularisation of any basis of a claim for damages.

194. I agree with the Council in this respect. There is no reference in the plenary summons, statement of claim or in the reply to negligence, breach of duty or even to the road closure. The pleading at paragraph 2 of the Reply is that the Plaintiff has suffered loss and expense by reference to the Defendant’s abuse of planning law and “unlawful assertion” that the road was a public road. The components of a claim in negligence are simply not pleaded and neither evidence nor submissions were directed to these points during the hearing before me (save for closing submissions on behalf of the Plaintiff).

195. I do not believe a claim for damages has been properly pleaded or made out in these proceedings.

196. Even if it had, I would regard the history of the engagement between the parties and the inconsistency in the Plaintiff’s position and the representations made to the Council on behalf of the Plaintiff (and his father) over several years that the road was a public road, as significant obstacles to any finding of liability sounding in damages against the Council.

(G) CONCLUSIONS

197. For the reasons given in this judgment, I am not satisfied on the evidence presented that the Disputed Road is a public right of way or a public road. I will grant a declaration to that effect.

198. Given the findings made, it is my provisional view that the appropriate costs order is an order that the Council discharge the Plaintiff’s costs of these proceedings. In the event that the

Council wishes to contend for a different form of order, written submissions of no more than 2,000 words in length should be submitted by 19 December 2025. The Plaintiff may then deliver replying submissions by 16 January 2026. I will list the matter before me for the purpose of deciding the allocation of costs and making final orders at 10.30am on 20 January 2026.