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Eircell Ltd. v. Bernstoff [2000] IEHC 18 (18th February, 2000)
THE
HIGH COURT
No.
1999 10182 P
BETWEEN
EIRCELL
LIMITED
PLAINTIFF
AND
ANN
BERNSTOFF, ROBERT FURLONG, JIM KEHOE,
STACIA
REDMOND AND ANN ROCHE
DEFENDANTS
AND
No.
93 MCA
BETWEEN
ANN
BERNSTOFF, ROBERT FURLONG, JIM KEHOE,
STACIA
REDMOND AND ANN ROCHE
APPLICANTS
AND
EIRCELL
LIMITED
RESPONDENT
Judgment
delivered by Mr. Justice Barr on the 18th day of February, 2000.
The
background to both proceedings, briefly stated, is as follows:-
1. Eircell
operate a mobile phone system throughout the state by means of
telecommunication masts which relay radio signals. A substantial network of
masts is required to operate the system. This entails inter alia, the erection
of a mast at Berkeley, New Ross, a rural area, to service subscribers in that
part of county Wexford. Eircell has entered into a lease with Mr. Garry
Murphy, a local farmer, under which it has secured a suitable site for the
proposed mast for a period of five years from 12th February, 1999. Mr.
Murphy's farm and other neighbouring properties are served by a boreen from the
Enniscorthy to New Ross main road and it constitutes the only means of access
to those properties. The lease with Eircell includes the following:-
"In
consideration of the yearly rent and the covenants and conditions hereinafter
reserved and contained the Lessor hereby demises unto the Lessee all that and
those the premises described in the Schedule hereto... as more particularly
delineated on the map or plan annexed hereto and thereon outlined in red
together with a right of way thereto and therefrom for all purposes and at all
times by day and by night with or without vehicles of all description and on
foot in connection with its business over the portion of the Lessor's property
coloured yellow on the map annexed hereto, together with the right to lay,
construct, maintain and repair the cables, ducting, wires, poles and manholes
over, under and along the way coloured yellow on the map attached".
2. Part
of the right of way afforded to Eircell is over lands owned by Mr. Murphy and
the balance relates to the boreen from the main road, part of which is on lands
owned by the first defendant, Mrs. Bernstoff. Notwithstanding the extensive
rights granted to Eircell in the lease regarding the access route to the mast
site, it is not in dispute that the proposed user of the boreen by Eircell will
be minimal. It is envisaged that two engineers will be required to service the
mast every few months. This will entail driving on the boreen to and from the
site in a small van about four times a year. No other user by Eircell is
anticipated other than in connection with the possible removal of the mast in
or about the year 2004.
3. The
decision by Eircell to erect the mast on Mr. Murphy's land has caused
substantial local agitation. The defendants in the Eircell proceedings and
others have formed a group called the Berkeley Environment Group (the group)
which has been and continues to campaign strongly against it. They believe
that the operation of the mast and the perceived emission of radiation from it
will create a serious health hazard for people living in or having resort to
the area.
4. Eircell
applied for and obtained planning permission from Wexford county council,
notwithstanding the opposition of the group. The objectors appealed to An Bord
Pleanala which granted planning permission for the mast for a period of five
years from the date of its order made on 6th January, 1999; after which Eircell
is required to remove the mast unless further planning permission is granted
for its retention. It follows, therefore, that the objectors will have an
opportunity to mount another challenge to the existence and user of the mast on
health or other relevant grounds if they wish to do so at that time.
5. The
permission granted to Eircell by An Bord Pleanala is subject to certain
conditions which include the following:-
"6.
Details of the proposed colour scheme for the telecommunications structure,
ancillary structures and palisade fencing shall be submitted to and agreed in
writing with the planning authority prior to the commencement of development.
7.
Prior to the commencement of development, the developer shall lodge with the
planning authority a cash deposit, a bond of an insurance company, or other
security to secure the satisfactory reinstatement of the site, coupled with an
agreement empowering the planning authority to apply such security or part
thereof to the satisfactory completion of the reinstatement, including all
necessary demolition and removal...."
6. As
to condition 6; Eircell performed its obligation thereunder, but the formal
written approval by the planning authority of the proposed colour scheme was
not received by it until about two days after the commencement of work.
7. As
to condition 7 which provides for a bond covering the cost of removing the mast
at the end of the five year period; here again there was a slight delay in the
fulfilment of the term. The requisite bond was not received by the planning
authority until a few days after the commencement of work.
8. Work
on the site commenced on or about 22nd March, 1999. Notwithstanding the
planning permission granted to Eircell and the failure of the objectors to
sustain their case about perceived health hazard, the group and others
comprising a large crowd gathered on and about the boreen and prevented the
Eircell contractors from gaining access to the site. The objectors and their
supporters resorted to serious intimidation to prevent the erection of the
mast. Protracted negotiations with the group involving also local public
representatives, including members of the Oireachtas, continued for several
months and came close to a resolution of the dispute. However, in the end
negotiations broke down and Eircell decided that it would have to proceed with
the erection of the mast as planned in order to make good a deficiency in its
mobile phone service in that part of Co. Wexford. This led to further
agitation and intimidation by the group and their supporters in October, 1999
in the vicinity of the site which prevented the work from continuing. This in
turn gave rise to the Eircell action against the group in which, inter alia,
the following relief is sought:-
"1. An
injunction restraining the defendants and each of them, whether by themselves,
their respective servants or agents, or any persons acting in consort with
them, or otherwise howsoever, and also restraining any persons having notice of
the making of any order herein, from interfering with the plaintiff's use and
enjoyment of the piece or plot of ground as more particularly delineated and
edged red (measuring approximately 100 square metres) together with the right
of way coloured yellow on the map or plan annexed hereto, being part of the
lands comprised in Folios 10498 and 10802S, Co. Wexford and situated in the
Townland of Berkeley, Barony of Bantry, and County of Wexford....."
9. Other
related injunctive relief is also sought.
10. An
interim injunction was granted by Kinlen J. on 13th October, 1999 restraining
the group and others having notice of the order from interfering with access to
and from the Eircell site. Separate proceedings have been brought by the group
against Eircell pursuant to Section 27 of the Local Government (Planning and
Development) Act, 1963 in which the following relief is sought:-
"1. An
Order prohibiting the respondent, its servants or agents from carrying out work
on lands at Berkeley, New Ross, Co. Wexford, Planning Register reference no.
97-2154 other than in accordance with the conditions attached thereto.
2.
An
Order prohibiting the respondent from carrying out any further works on the
lands located at Berkeley Forest, New Ross, Co. Wexford, the subject matter of
Planning Permission, Register Reference no. 97-2154 unless and until conditions
Nos. 6 and 7 of that permission had been complied with.
3. A
declaration that any works carried out not in conformity with Planning
Permission, Register Reference no. 97-2154 constitutes an unauthorised
development for the purposes of the Local Government (Planning and Development)
Acts, 1963-1998.
On
20th October, 1999 application was made ex-parte to Mr. Justice McCracken by
counsel on behalf of the group for an interim injunction restraining Eircell
from continuing with the erection of the mast on the grounds that it was not in
conformity with the planning permission in question and constituted an
unauthorised development for the purposes of the Planning Acts. Eircell
responded immediately to the injunction and on notice to the group, applied to
McCracken J. later that day for an order discharging it on the ground that
although there had been in the strict sense minimal delay in complying with
conditions, no harm whatever had been done to the group or anyone on that
account and that injunctive relief ought not to have been granted. In the
light of the evidence adduced by Eircell, McCracken J. discharged the interim
injunction he had granted to the group. An interim agreement was arrived at
between the parties whereby Eircell was enabled to complete the erection of the
mast subject to an undertaking not to bring it into service pending further
order of the court.
The
controversy between the parties now comes before the court on foot of motions
in the respective proceedings. Eircell is seeking a series of injunctions
restraining the group and all persons having knowledge of the granting of such
relief from interfering with the user of the mast for its intended purpose as
an antenna for relaying signals in connection with its mobile phone network and
also from interfering with access to and from the site. The motion brought in
the group's proceedings relates to the orders which it seeks under section 27.
THE
SECTION 27 APPLICATION
It
is convenient to deal with the section 27 application first. It is conceded by
Eircell that the requirements of conditions 6 and 7 in the planning permission
were not fully complied with in that there was a slight delay by the local
authority in complying with the first and an equally short delay of a few days
by Eircell in complying with the other condition. However, it is submitted
that having regard to the second order made by McCracken J. on 20th October,
1999 in which it is stated that the court was satisfied that conditions 6 and 7
of the planning permission have been complied with and as there has been no
appeal against that finding, the matter is res judicata between the parties and
cannot be raised again by the group. It is also argued on behalf of Eircell
that, apart from the question of res judicata, the minimal time delays relating
to compliance with the respective conditions are of no significance and caused
no harm whatever to the group or anyone else and, accordingly, the applicants
are not entitled to relief under section 27. It was argued on behalf of the
applicants that as the requirements in question were conditions precedent to
the commencement of development, they should be strictly interpreted and
subsequent compliance does not render legal what was already an unlawful
development.
I
am satisfied that in all the circumstances I should follow the decision of
McCracken J. in holding that the conditions in question have been complied
with. Even if he had made no such order it is abundantly clear on the facts
that the relief sought under section 27 should not be granted. No court should
make an order which is potentially futile. If the mast were declared to be an
unlawful development, no doubt application would be made to the planning
authority for a retention order and in the circumstances that would be granted
for the asking.
RIGHT-OF-WAY
OVER THE BOREEN
The
Eircell application turns upon the nature and extent of the boreen right of way
to the mast site. In approaching that issue one starts from the premise that
traditionally boreens are the veins of rural Ireland and the definition of the
nature and extent of the right of way any one of them provides may well be a
difficult task. The case has been made on behalf of the group, for the first
time at a late stage in the proceedings, that the operation of the mast cannot
proceed because the access route to it from the adjacent main road is a private
right of way by prescription which, in the case of anyone occupying Mr.
Murphy's land, is limited to agricultural or domestic purposes only and
therefore excludes user in connection with the Eircell mast which is commercial
in nature.
An
amount of evidence has been adduced regarding the boreen. That part of it
adjacent to the Enniscorthy/New Ross Road (or at least half the width of it -
there is some controversy in that regard) is on Mrs. Bernstoff's land. There
is some evidence to suggest that the boreen has been in existence probably for
hundreds of years. Originally it joined the Enniscorthy - New Ross Road with
another highway and on that account would have been a public way. If it is a
public road it would provide a right of access to the mast for Eircell and its
agents. However, at some as yet unspecified time, the boreen petered out
before its terminus with the second highway and in effect because a cul-de-sac.
This event did not alter user by the various occupiers in the vicinity of what
ultimately became Mr. Murphy's property, save that they could no longer
traverse the boreen as far as the public road which had been cut off. It was
submitted on behalf of the group that if the boreen ever had the status of a
public way, it had lost it. The contention was made that a cul-de-sac cannot
be a public way unless it gives access to a place of public interest such as a
beach, an area of scenic beauty or a place of historic significance such a
monastic ruin or the site of an important battle - none of which it was
submitted applies in the instant case. Although the occupiers of some other
properties adjacent to Mr. Murphy's farm which are dependant upon the boreen as
sole means of access, have used the lane-way in connection with
non-agricultural business activities there in the past, Mr. Murphy and his
predecessors in title for upwards of twenty years have confined their user of
the boreen to agricultural and domestic purposes only. Accordingly, it is
argued that he and those claiming through him, including Eircell, are
restricted to such user. The rights of each such occupier, who it is submitted
must be regarded as having no more than a prescriptive private right of way,
should be considered in the light of the particular circumstances of each case
- the essence of the question being the nature of the boreen user in connection
with each individual property during the past twenty years. If that submission
is good in law then Eircell have no right of way over that part of the boreen
which is on Mrs. Bernstoff's lands and, therefore, they would have no right to
service the mast by using the boreen pursuant to the purported right-of-way
granted by the lease.
Eircell's
answer to the foregoing argument is threefold. First, the original boreen
which joined the two public highways never lost its status as a public way when
eventually it became a cul-de-sac. It was contended that once a highway always
a highway unless its status is extinguished by statute which did not happen in
the present case. Secondly, even if it always had been a cul-de-sac as it is
now, there is sufficient evidence to establish that it is a public highway. In
this regard the plaintiff relied upon a written submission made on behalf of
the group to An Bord Pleanala in course of the planning appeal in which they
referred to the boreen as a former public road and it was also submitted on
their behalf that it led to an area of natural beauty and public interest which
attracted, among others, walkers and boy-scouts whose health would be put at
risk by the operation of the mast. It was also urged that the change of
character which eventually emerged when the boreen petered out and became a
cul-de-sac could not affect the existing rights of occupiers at Mr. Murphy's
end of the boreen whose unrestricted user of it would have continued as it had
been originally, save for the practical inability of being unable to connect
with the road which had been cut off.
Finally,
it was submitted that the court could not make any order affecting Mr. Murphy's
property without giving him an opportunity of being heard. He is not a party
to the action and no proceedings have been brought against him by the group.
It
is not in controversy that Eircell would be entitled to the injunctive relief
which they seek pending trial of the action if they satisfy the court on two
points. The first is that, as to the right of way controversy, there is
sufficient evidence before the court to establish that there is a fair issue to
be tried in that regard. In the light of the foregoing arguments I have no
doubt that Eircell has established that proposition.
The
second factor which must be established by the plaintiff is that in all the
circumstances the balance of convenience favours the granting of the injunctive
relief sought. In that regard they rely on the following points:-
(i) There
is presently a part of their phone network which has a poor signal. The mast
is required to remedy that deficiency. Without it Eircell is at a disadvantage
with its competitor and is suffering an on-going loss of business on that
account. It is impossible to quantify that loss and, therefore, damages do not
constitute an adequate remedy.
(ii) In
determining what loss or inconvenience would be suffered by the group or anyone
else if the relief sought is granted the issue relates only to the perspective
use of the boreen by Eircell which it is accepted will be minimal.
Accordingly, no significant relevant loss will be suffered by the defendants
pending the trial of the action.
(iii) It
is proper for the court to take into account the merits of the group's case and
their reprehensible conduct in the matter of intimidation and attempted
unlawful enforcement of alleged rights.
(iv) Conversely,
it is also proper to take into account the fair and reasonable behaviour of
Eircell and its agents in this matter.
All
in all, I am satisfied that the balance of convenience favours the granting of
the relief sought pending the trial of the action and that Eircell should be
permitted to activate the mast as part of its mobile phone network.
Accordingly, I grant the relief sought at paragraphs 1 and 2 in the notice of
motion herein; such relief to continue until the trial of the plaintiff's
action against the group.
MMBAR2.SAM
NOTE
FOR JUDGMENT
It
also must be borne in mind that boreens of whatever nature are traditionally
the veins of rural Ireland and to establish any one of them as being a public
or private way is often a difficult task.
© 2000 Irish High Court
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