Hearty v Finnegan & Anor [2009] NIQB 21 (03 February 2009)

Hearty v Finnegan & Anor [2009] NIQB 21 (03 February 2009)

The proposed residential development constitutes a radical change in character and identity of the plaintiff's land and would substantially increase and alter the burden on the defendants' land; therefore, the prescriptive right of way does not extend to residential use.

Citation
[2009] NIQB 21
Parties
Plaintiff/appellant: Margaret Hearty; Defendant/respondent: Patrick Finnegan; Defendant/respondent: Elizabeth Finnegan
Jurisdiction
Northern Ireland
Judgment Date
03 February 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Right of Way, Prescriptive Easement, Change of Use, Burden on Servient Land
Property Law Easements Right of Way Prescriptive Easement Change of Use Burden on Servient Land

Case Brief

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Parties

Margaret Hearty

Plaintiff/appellant

Patrick Finnegan

Defendant/respondent

Elizabeth Finnegan

Defendant/respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether a prescriptive right of way for agricultural purposes extends to residential use
  2. 2 Whether proposed residential development constitutes a radical change in character or identity of the land
  3. 3 Whether residential use would substantially increase or alter the burden on the servient land

Ratio Decidendi

The proposed residential development constitutes a radical change in character and identity of the plaintiff's land and would substantially increase and alter the burden on the defendants' land; therefore, the prescriptive right of way does not extend to residential use.

Court Disposition

Appeal dismissed

Orders

  • Plaintiff's application for declaration of right of way for residential purposes refused
  • Plaintiff retains right of way for agricultural purposes