Factual and Procedural Background
This appeal concerns whether a landowner who permitted drivers of oil tankers, ride-on lawnmowers, and other visitors to traverse his land for access to a neighbouring property over a period of twenty years thereby created a right of way in favour of that neighbouring property. The High Court rejected the claim on the facts of the case, and the defendant appealed.
The plaintiff, Company A, is a limited liability company owning factory premises formerly used as a sweet factory. The defendant, now deceased, was the owner and resident of a bungalow adjacent to the factory premises. The bungalow and factory abut each other with no formal boundary between them.
Following the defendant’s death, the proceedings were continued with a named administrator ad litem of the defendant’s estate. The dispute arose after Company A sought to sell the factory lands to a supermarket chain, which raised concerns about the existence of a right of way from the factory premises to the bungalow.
Historically, the factory premises and bungalow were part of family lands owned and controlled by the same family. After a new road was constructed in 1982, the factory acquired a new entrance from this road, which became the preferred access route. The defendant and her family and visitors were found to have crossed the factory lands using this route for deliveries and access, with no objection from the factory owners, over many years.
Company A commenced proceedings seeking a declaration that no right of way existed. The defendant counterclaimed asserting such rights. The High Court found the use was permissive and not as of right, rejecting the defendant’s claim. The defendant appealed this conclusion.
Legal Issues Presented
- Whether the use of the factory lands by the defendant and her visitors over a period of twenty years constituted user "as of right" sufficient to establish a prescriptive right of way under section 2 of the Prescription Act 1832.
- Whether an easement of necessity arose over the factory lands in favour of the bungalow.
Arguments of the Parties
Appellant's Arguments
- The appellant claimed a right of way was acquired by prescription through uninterrupted use for over twenty years.
- They contended the user was "as of right" and not merely permissive or precario.
- The appellant challenged the validity of the share purchase agreement and the absence of independent legal advice as factors affecting the defendant’s capacity to waive any rights in 1999.
Respondent's Arguments
- The respondent argued the use was precario, i.e., by permission or tolerance, not adverse or as of right.
- They pointed to the closing of factory gates at night and weekends, the absence of any assertion of right by the defendant, and the terms of the 1999 share purchase agreement as evidence negating any right of way.
- The respondent submitted there was no easement of necessity as alternative access to the bungalow existed at all times.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Zopitar Ltd. v. Harold [2015] IEHC 790 |
High Court decision rejecting the existence of a right of way on the facts. |
Formed the factual and legal foundation for the appeal. |
| Orwell Park Management Ltd. v Henihan [2004] 5 JIC 1409 |
Prescriptive easements require continuous use "as of right" and not mere tolerance or permission. |
Used to explain the necessity of use being open and adverse to establish a right of way. |
| Gardner v Hodgson's Kingston Brewery Co Ltd [1903] A.C. 229 |
"As of right" means use without force, secrecy or permission (nec vi, nec clam, nec precario). |
Confirmed the legal standard for prescriptive claims under the 1832 Act. |
| R. v Oxfordshire C.C., ex p. Sunningwell Parish Council [2000] 1 AC 335 |
Clarification of "as of right" in the context of public rights and prescription. |
Supported the interpretation of user being without permission to establish rights. |
| London Tara Hotel Ltd. v. Kensington Close Hotel Ltd. [2011] EWCA Civ 1356 |
Continuous use of a roadway can ripen into a prescriptive right if users act as if entitled. |
Distinguished from the present case by the Court; highlighted differences in user behaviour. |
| Barry v. Lowry (1877) 11 I.R. C.L. 483 |
Use of a way with keys supplied by the landowner indicates permissive use (precario), negating prescriptive rights. |
Applied to show that use involving permission or keys does not establish rights of way. |
| Walsh v. Sligo County Council [2013] IESC 48 |
User by permission is not user as of right; toleration does not establish rights. |
Used to support the conclusion that gated access and toleration negated prescriptive rights. |
| R. (Beresford) v. Sunderland City Council [2004] UKHL 60 |
Explains the concept of precario and the difference between mere acquiescence and a revocable licence. |
Provided authoritative explanation of the legal concept of precario applied in this case. |
| Bright v. Walker (1834) 1 C.M. & R. 211 |
User must be "openly and in the manner a person rightfully entitled would use it" to establish rights. |
Supported the interpretation of "as of right" user under the 1832 Act. |
| Attorney General v. Antrobus [1905] 2 Ch. 188 |
Landowners' tolerance should not be misconstrued as dedication of rights. |
Used to reinforce the principle that toleration does not create rights. |
| Simpson v. Attorney General [1904] A.C. 476 |
Approved the view that tolerance does not amount to legal right. |
Supported the legal framework on toleration vs. rights. |
| Folkestone Corporation v. Brockman |
Landowners should not be forced to be churlish about their rights due to neighbourliness. |
Supported the policy considerations underlying the decision. |
Court's Reasoning and Analysis
The Court analysed whether the user of the factory premises by the defendant and her visitors was "as of right" for the purposes of establishing a prescriptive right of way under section 2 of the Prescription Act 1832, which requires use to be without force, secrecy, or permission (nec vi, nec clam, nec precario).
The Court accepted the findings of the High Court that the user was permissive and tolerated rather than adverse. The evidence showed that the factory gates were closed outside working hours and the defendant and her agents never had keys for unrestricted access but requested the gates to be opened when needed. The keys they possessed were for emergencies or given in the capacity of company officers, not for exercising a right of way. This indicated the use was by permission rather than as of right.
The Court emphasised that the defendant and her visitors did not behave as if they had a legal right to cross the factory lands, and the factory owners were unaware of any assertion of such a right until the issue arose during the proposed sale to the supermarket chain. The share purchase agreement in 1999 contained warranties denying the existence of any rights of way, and the defendant did not challenge or seek to set aside this agreement, suggesting acceptance that no such rights existed.
The Court considered relevant authorities on the concept of precario, including the need for use to be adverse and not merely tolerated or licensed. It distinguished the facts from cases where users acted as if entitled to use the land, highlighting that here the use was clearly dependent on the goodwill of the factory owners.
Regarding the claim of an easement of necessity, the Court found it inapplicable as the bungalow was never landlocked and had separate access from the public road.
In sum, the Court concluded that the user did not meet the legal standard for establishing a prescriptive right of way and upheld the High Court’s rejection of the defendant’s claim.
Holding and Implications
The Court DISMISSED the defendant’s appeal.
The effect of this decision is that no prescriptive right of way exists across the factory premises in favour of the bungalow. The ruling confirms that permissive use, even if longstanding and consistent, does not establish a legal right of way absent clear evidence of adverse user "as of right." No new legal precedents were established beyond affirming the application of existing principles regarding nec vi, nec clam, nec precario in prescriptive easement claims.