A rural development company “manifestly trespassed” when it entered onto private farmland near Rathmore in Co. Kerry to carry out works on a community walkway, a Circuit Court judge has ruled. The company believed the walkway to be a public right-of-way.
At Killarney Civil Circuit Court, IRD Duhallow CLG, with an address at James O’Keeffe Institute, Newmarket, Co. Cork, was given four weeks to remove a previously installed bench and a plinth, and reinstate lands at Shinnagh, Rathmore near the Cadbury factory.
IRD Duhallow entered onto land owned by local farmer, John William O’Sullivan and his wife Antoinette O’Sullivan, to carry out excavation works and remove ditches, the court heard.
Judge Terence O’Sullivan described IRD Duhallow’s approach to the project as “outrageous” and “aggressive”.
The development company was in “strong belief” that the section of farmland was part of the old Butter Road, a public right-of-way or ‘highway’, between Listowel and Cork.
IRD Duhallow had “intended to open the right-of-way” for public use.
However, Judge O’Sullivan said evidence given by the development company in court “fell far short” of establishing the section of land was a public right-of-way.
No right of way
Landowners John William O’Sullivan and his wife Antoinette O’Sullivan, who objected to the “unlawful” entering of their private property, the removal of ditches, and the removal of a gate on their farm, were forced to place a trailer on their land to stop further works, the court heard.
The plaintiffs claimed that upon attempting to dissuade IRD Duhallow and the development company’s CEO Maura Walsh from its “unlawful actions”, they were told by the defendant that if they went to a solicitor, it would cost them “a small fortune”.
The plaintiffs also claimed that they were told they would lose, as the company said they were entitled to enter onto the O’Sullivan property and undertake works.
Giving evidence, Ms O’Sullivan said machinery, including an excavator and dumper truck, arrived and parked at the entrance to their property on Saturday, May 22 of this year.
“We knew nothing about any works being carried out whatsoever,” she told the court.
She said works began on May 24 on nearby lands and the next day, they received “a courtesy call” from IRD Duhallow to say that “work was going to be carried out on our property”.
A communal meeting in relation to the walkway took place at a nearby crossroads on May 31.
Ms O’Sullivan said: “I voiced a lot of concern at that meeting especially in relation to the safety of my children, and John’s land”.
The Rathmore landowner claimed that IRD Duhallow CEO, Maura Walsh, told her to “work with us and we’ll work with you, go against us and it will cost you thousands and you’ll lose”.
Ms Walsh “categorically” denied she ever said that to Ms O’Sullivan.
Ms O’Sullivan said she was petrified for herself and her children and left the meeting in fear as she didn’t want anyone entering their property.
On June 9, machines started to dig up ditches and took down a gate on O’Sullivan’s land. The works continued through June and on July 1, during which a concrete base was put down and a bench put in.
Maura Walsh, CEO of IRD Duhallow, said the project, under the Outdoor Recreation Infrastructure Scheme, aimed to create an accessible public walkway and an outdoor facility for the benefit of the community.
She said a public meeting set out what the company were going to do and IRD Duhallow were willing to work with landowners with “whatever they wanted”.
Ms Walsh said: “We firmly believe we weren’t trespassing on the O’Sullivan’s land. It (the road) has been used by people for hundreds of years.
“We had no intention of going over the ditch and going into the O’Sullivan property. We stuck strictly to the road.”
The judge said he accepted IRD Duhallow used public money to upgrade facilities for the benefit of local people, but said it was “outrageous” to have public meetings rather than approach the landowners directly impacted.
IRD Duhallow had been an aggressive pursuer of a particular position, he said.
Judge O’Sullivan said an individual cannot assert a road is a public right-of-way without an official ruling from the attorney general.
“The very least that could have been done was to approach the landowner and there might then have been a different outcome,” he said.
Judge O’Sullivan said the walkway would have been “convenient” and “well liked”, but under the Constitution people are entitled to property rights and to protect those property rights “even where those property rights do not suit the general community”.
“They manifestly trespassed, they manifestly interfered with the land,” he said.
“The defendant should regret the way they approached the matter.”
Legal costs are to be borne by IRD Duhallow.
Judge O’Sullivan said the development company now had “no right to go onto the private property” and he gave the defendant one month to remove the bench on the lands.