GUIA Properties Limited v The Paddocks Killeline Management Company Limited By Guarantee and Anor

[2026] IEHC 153 THE HIGH COURT H.SP.2025.0000067 BETWEEN GUIA PROPERTIES LIMITED PLAINTIFF AND THE PADDOCKS KILLELINE MANAGEMENT COMPANY LIMITED BY GUARANTEE AND NAUTIC BUILDING COMPANY LIMITED (IN LIQUIDATION) DEFENDANTS JUDGMENT of Mr. Justice Nolan delivered on the 11th day of March 2026 Introduction 1. This is an application pursuant to Section 50 of the Land and Conveyancing Law Reform Act, 2009 (the “2009 Act”) which allows an application to court to discharge in whole or in part a freehold covenant on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land. 2. Remarkably this would seem to be the first opportunity for a written judgment on the issue. Background 3. The Plaintiff is the freehold owner of a plot of land situated at Rathnaneane, Newcastle West, County Limerick, comprised in Folio LK69478F (the “servient land”). The land in question is surrounded by several housing developments. However, the Folio contains a burden on title, registered on the 17th of August 2016, whereby the property is subject to the covenants and conditions relating to the use and enjoyment of the property and other rights referred to in a Deed of Transfer dated the 13th of July 2016 (the “Deed of Transfer”). 4. Under the Deed of Transfer the purchaser covenanted with the Vendor, the First and Second Named Defendants, jointly and severally and with the owners of the sites on the estate, that the purchaser and all those deriving title under him will at all times comply with and observe the covenants, obligations and restrictions set out in the Fourth Schedule. 5. The relevant covenant in the Fourth Schedule states that the purchaser is “Not to use the sold land for any purpose other than a single private or professional dwellinghouse with the usual out offices…” 6. The Plaintiff has planning permission on the servient land for the construction of 10 houses, an access roadway, foul and surface water sewers and all ancillary site works on the land, granted by An Bord Pleanála on 10th of August 2020, subject to 12 conditions. It has been able to obtain a three-year extension of that permission. 7. In those circumstances, the Plaintiff wishes to develop the property in accordance with the planning permission, but the relevant covenant prohibits such development. For that reason, the Plaintiff requires an Order discharging in full or modifying the restrictive covenant in circumstances where continued compliance would constitute an unreasonable interference with the use and enjoyment of its property. The Deed of Transfer 8. Operative clause 2. (iii) of the Deed of Transfer provides as follows: - “The Purchaser so as to bind the owner for the time being of the Sold Lands and so that this covenant shall be for the benefit and protection of the Estate hereby so that this covenants with the Vendor and the Management Company jointly and severally in a separate convent with each of them and with the owners of the sites that the Purchaser and the persons deriving title under him/her/them will at all times hereinafter comply with and observe the covenants, obligation and restrictions set out in the Fourth Schedule hereto.” 9. Interpretation clause (xxvi) of the Deed of Transfer states: - “The Vendor has transferred or intends to transfer sites in substantially the same form as these presents (mutatis mutandis) with the intent that (in so far as law permits) any owner may be able to enforce the observance of covenants of the type set out in the Fourth Schedule hereto on the part of the owner for the time being of any other sites irrespective of the chronological order of which the transfers are made.” Section 50 of the Land and Conveyancing Law Reform Act, 2009 10. Section 50 reads as follows: - “(1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land. (2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters— (a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then, (b) any change in the character of the dominant land and servient land or their neighbourhood, (c) the development plan for the area under the Act of 2000, (d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions, (e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit, (f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance, (g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied, (h) any representations made by any person interested in the performance of the covenant, (i) any other matter which the court considers relevant. (3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit. (4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.” 11. While there was no direct statutory provision in place up until the 2009 Act, Section 69 (3) of the Registration of Title Act, 1964, did provide a mechanism where a covenant or condition registered could be modified or discharged by order of court. The new provision, however, echoes Section 84 of the Law of Property Act, 1925, as expanded by Section 29 of the Law of Property Act, 1969, in the jurisdiction of England and Wales. Caselaw 12. In Jackson Way Properties Ltd v Smith [2018] IEHC 115, Keane J. states at paragraph 31: - “In Wylie, Irish Land Law, 5th edn. (Dublin, 2013) (‘Wylie’) (at para. 21.13), Professor Wylie points out that restrictive covenants in respect of freehold land were, until recently, comparatively rare in Ireland because most land was leasehold. In consequence, they have received little judicial attention here. The law of England and Wales concerning the scope of such covenants was substantially altered by the enactment of the Law of Property Act 1925 in a manner that, certainly prior to the coming into force of the Act of 2009, the law of Ireland was not. Thus, the principles of the common law and, more significantly, those of equity that govern the validity and enforceability of restrictive covenants over freehold land entered into prior to 1 December 2009, largely fall to be distilled from a succession of nineteenth, and early twentieth, century English cases.” 13. Other than that case there doesn't seem to be any other relevant decided case. However, there is some authority in the neighbouring jurisdiction and their similar provision (see: Re an Application by Edwards [1983] R.V.R. 94 and Gilbert v Spoor [1982] 3 W.L.R. 183). What the Court Must Consider 14. Section 50(2)(a)-(i) of the 2009 Act lists the various factors that the Court must consider before exercising its discretion to discharge or modify a restrictive covenant. The Court must balance the interests of the dominant and servient owners, all of which are relevant in determining whether continued compliance with the covenant would constitute an unreasonable interference with the use and enjoyment of the servient land. 15. These issues were considered in the European Court of Human Rights, Grand Chamber, in JA Pye (Oxford) Ltd v UK [2007] 46 EHRR 1083, and in S v United Kingdom ECHR 10741/84, the latter of which concerned an application before the Lands Tribunal for Northern Ireland for an order extinguishing or modifying two restrictive covenants pursuant to Article 5 of the Property (Northern Ireland) Order, 1978, confining use to sporting, recreational and social activities. 16. In upholding the Northern Ireland provisions, the ECHR noted that, on the evidence before it, the Tribunal was satisfied that the land’s former use for private recreation had fallen into abeyance through lack of demand. There had been no recent interest from local residents or any other source in using the land for outdoor recreation, nor had there been any planning pressure or commercial interest in developing it. The Tribunal found no evidence to suggest that commercial or recreational development was anything more than a “mere possibility or hope.” 17. By contrast, the Tribunal found that the proposed educational use—namely, the development of a new school alongside the nursery school completed in 1975—was concrete and real. Planning permission for such use had already been granted as part of the area development programme, and the land’s future in that capacity appeared assured. 18. Having considered the evidence, the Tribunal concluded that there was no justification for continuing to sterilise the land through restrictive covenants. As the landlord’s interest was limited to collecting ground rents in the vicinity, it no longer had an interest sufficient to warrant the covenants’ perpetuation (see also Stannard v Issa [1987] A.C. 175, and Re Tate’s Application [2013] UKUT 289 LC, the Upper Tribunal (Lands Chamber)). Application of Law to Facts 19. I am satisfied that the covenant was created for the purpose of creating a commercial benefit to the Second Named Defendant and not for the purpose of creating any real benefit for the dominant land. 20. The First Named Defendant has taken no part in the matter and anyway seems to be no longer trading. I note that the local authority has taken the adjacent Paddocks Estate (the “Estate”) in charge. 21. The Second Named Defendant too has taken no part and is in liquidation. It was named because it remains the registered owners of small pieces of land in the Estate, but it is not clear why that is so. 22. The liquidators are taking a neutral position with regards to the Plaintiff’s application. 23. No party seeks to uphold the covenant, which I consider to be material. I also take it into consideration the relatively short timeframe since the covenant was created. As I noted above it is hard to see what benefit the covenant provided to the dominant land. Development has accelerated on the surrounding lands, leaving this piece of land becoming something of a waste land, mainly because of the covenant. 24. The modification or discharge sought marries with the surrounding development and of course. the planning permission already granted by the local authority, which is in conformity with the Limerick Development Plan 2022-2028. 25. Further I note that the Regional Spatial and Economic Strategy identifies Newcastle West as a “Key Town” whose attributes include a large population scale, urban centre and functioning as a self-sustaining driver. 26. Ms. McLaughlin, the planning expert employed, notes, having regard to the various policy and planning documents, that planning permission would not be granted for a single dwelling on the servient lands, a fact which I also consider very relevant. 27. The servient land, being located in an established suburban residential area, is zoned Tier 1 serviced residential land, as is the vacant open lands to the west of the servient land. 28. I accept fully that given the objectives in the Local Area Plan and National Planning Framework that the discharge or modification of the covenant would be in the public interest. The owners of the nearest homes might consider the status quo of a vacant site, as a practical benefit, although it was never contemplated that the servient lands would remain vacant. However, I note that there has been dialogue with the owners of the properties adjacent to the lands and a compromise has been reached to the effect that they are in agreement with the order sought. 29. Further, An Bord Pleanála considered that the permission for the development of the servient land would not adversely impact on the residential amenities of adjoining properties. 30. In my opinion a fair balance has been struck between the right of the dominant owners, the rights of the Plaintiff to use and enjoy the land without unreasonable interference, and the general interests of the public and local community in circumstances where there is a national shortage of housing and a growing population. Orders 31. For the reasons set out above, the Court is satisfied that the restrictive covenant constitutes an unreasonable interference with the use and enjoyment of the servient land within the meaning of section 50(1) of the 2009 Act. 32. The Court will therefore make an order discharging the covenant in full (or modifying it in the terms sought, if preferred), together with such ancillary directions as are necessary. 33. Pursuant to section 50(4), the order shall be registered in the Land Registry.