Dwyer Nolan Developments -v- Kingscroft Developments Ltd [2007] IEHC 24 (09 February 2007)

Dwyer Nolan Developments -v- Kingscroft Developments Ltd [2007] IEHC 24 (09 February 2007)

The plaintiff suffered a substantial interference with its right of way due to the absence of a hard-surfaced, planning-permitted road, entitling it to damages, but the measure of damages must reflect only the quantifiable loss from the current inability to use the access for ordinary vehicular traffic, not the full development value, and must account for the plaintiff's duty to mitigate loss.

Citation
[2007] IEHC 24
Parties
Plaintiff: Dwyer Nolan Developments Limited; Defendant: Kingscroft Developments Limited
Jurisdiction
Ireland
Judgment Date
09 February 2007
Procedural Posture
Plenary Proceedings / Assessment of Damages Following Declaratory Relief
Outcome
Damages awarded to plaintiff
Legal Topics
Right of Way, Easements, Nuisance, Damages, Planning Permission, Mitigation of Loss
Property Law Tort Law Right of Way Easements Nuisance Damages Planning Permission Mitigation of Loss

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Parties

Dwyer Nolan Developments Limited

Plaintiff

Kingscroft Developments Limited

Defendant

Procedural Posture

Plenary Proceedings / Assessment of Damages Following Declaratory Relief

Legal Issues

  1. 1 Whether the plaintiff is entitled to damages for interference with a right of way after declaratory relief
  2. 2 Proper measure of damages for substantial interference with a right of way

Ratio Decidendi

The plaintiff suffered a substantial interference with its right of way due to the absence of a hard-surfaced, planning-permitted road, entitling it to damages, but the measure of damages must reflect only the quantifiable loss from the current inability to use the access for ordinary vehicular traffic, not the full development value, and must account for the plaintiff's duty to mitigate loss.

Court Disposition

Damages awarded to plaintiff

Orders

  • Damages assessed at €100,000 in favour of the plaintiff
  • Declaration to be expanded to provide for right to apply for planning permission to construct a hard-surfaced road over the extension area