O'Mara & Anor v. Morrison

The respondents are the owners and occupiers of a substantial house with grounds in Dalkey, Co. Dublin. At the time of purchase a total price of IR�1,010,000 was expressly apportioned so that IR�120,000 of the total purchase price was attributed to the benefit of certain covenants and easements. The purpose of the covenants was essentially to secure privacy for the respondents and they were, therefore, highly restrictive of development. Alleged breaches of these covenants have led to this litigation.

The case comes before this court by way of appeal from an order of the High Court (Kelly J.) made the 14th of February, 2003. In the High Court it was sought to injunct intended works for the purposes of widening a driveway from the public road which serviced both the respondents' house and a house on the retained lands owned and occupied by the appellant. A mandatory injunction was also sought with a view to reinstating a hedge which had already been removed.

The third issue related to whether a particular wall was a party wall or not the relevance of this being whether the appellant was a trespasser in relation to certain aspects of the works. The learned High Court judge did not find it necessary to make any decision on that point. If this court were to find it necessary that the party wall issue be determined it would have to send the case back to the High Court.

The learned High Court judge, in his judgment, raises the question as to whether there might in fact be a fourth issue. At p. 12 he said the following:

While there seems to be considerable force in the observations of the learned judge, I do not think that it would be appropriate to broaden the issues on the appeal and in that regard even the plural is doubtfully appropriate because in my view the only matter which this court can now determine is whether the learned High Court judge was correct or incorrect in his view that the proposed works would constitute breach of covenant.