Monday 14 October 2019

Council 'bewilderingly incompetent' over land trespass, judge says as she awards family €77k damages

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Tim Healy

A local authority was "bewilderingly incompetent" in its conduct when it directed a construction firm to trespass on private land to carry out road and drainage works, a High Court judge said.

Ms Justice Una Ní Raifeartaigh made the comment when she awarded €77,000 to members of the Eustace family from Drogheda, Co Louth, for "gross negligence" in the trespass over a nine year period on family land at the intersection of Donore Road and St John's Road, opposite the Haymarket development in the centre of Drogheda.

Brothers Gerard, Ronald and Noel Eustace, along with their mother Kathleen who has since died, sued Drogheda Borough Council and Jons Civil Engineering, the company directed by the council to carry out the works on the land in 2001.

They claimed damages for trespass and nuisance as well as for misfeasance in public office.

The judge was satisfied that, while there was trespass, the evidence did not prove misfeasance.

"The conduct of the council as a collective entity was in my view deeply disrespectful to the Eustaces' property rights and bewilderingly incompetent", she said.

However, she could not say there was a least one public officer who had both the requisite level of authority to authorise Jons to enter the land as well as the knowledge of the Eustace ownership claim.

The then Louth Co Manager John Quinlivan, now retired, presumably had the requisite authority to give Jons permission to enter upon the lands, she said. 

But there was nothing in oral evidence or documents which proved he had knowledge of correspondence sent by the Eustaces about their ownership. 

This included material relating to putting the land on the Register of Derelict Sites in the early 1990s signalling their ownership.  The judge noted the land seemed to have been left, if not derelict, certainly vacant and the grass on it was cut and it was maintained for several years by the council without objection from the Eustaces.

Senior council engineer, Martina Sheeran, was clearly very involved in the correspondence with the Eustaces and had the requisite knowledge regarding their claim to the land, she said. 

But, the judge said, she was an engineer being asked about the title to the land and there was no evidence before the court that she had any role in the ultimate decision to allow Jons go on to the land.  Ms Sheeran said she had assumed  the council's lawyers had been consulted about it.

One would imagine the first port of call in relation to the ownership would be the council's law agents, she said.  But it was a number of months into the 2001 trespass before the law agent became involved and "even then there seems to have been delay in accepting the Eustace's title".

The precise role of the then Drogheda Town Clerk, BP Hoey, in the whole affair was not clear and he was not called as a witness, the judge said.

In assessing damages for trespass, among the matters she took into account were that the Eustaces repeatedly corresponded with the council in 2001/2 and provided it with a copy of the title deeds in January 2002.

The council could have "easily ascertained" title by making appropriate enquiries. 

The trespass, which ultimately resulted in the construction of the Donore slip road on the land, continued until 2010 when talks about buying the land from the family started.  A purchase price was not arrived at until 2018 following arbitration.

The judge also found the trespass caused considerable distress and inconvenience to the family.  The council also "never adopted a position of clear apology" or showed any haste to remedy the situation.

The attitude of the council in the early years of the trespass was one of gross negligence and it only acknowledged its mistake in a grudging and gradual way, she said.

She awarded €65,000 in compensatory damages and another €12,000 in aggravated damages for the manner in which the council dealt with it over a nine year period.

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