Tuesday 20 March 2018

Pensioner loses civil action in land dispute with Minister Alan Kelly

Junior minister Alan Kelly has won his civil case
Junior minister Alan Kelly has won his civil case

A 72-year-old woman has lost her civil action in a land dispute involving a Government Minister and his father.

Diane Whitehead, initiated civil proceedings against Junior Public Transport Minister Alan Kelly and Thomas Kelly (74) after a lane way she used to access her field, was blocked with a barrier.

The 72-year-old, who is originally from London moved to North Tipperary in the late 1980s, after purchasing a four bedroomed modern bungalow over looking Lough Derg outside the village of Portroe.

She claims access to the lane, which she used to access her field where horses are kept, was blocked by barriers in 2010, around the time her next door neighbour Alan Kelly began renovating his home.

Ms Whitehead sought "unfettered access" to the lane which she claimed she half owned according to maps she presented to Nenagh Circuit Court.

The Kellys disputed her claim insisting they own the lane way which has been in the family since the 1930's.

In her evidence Ms Whitehead, who claimed she used the lane for 20 years to access her field, recalled how she wrote several several letters to her solicitor to record what she "regarded as harassment and intimidation".

The 72-year-old admitted she had installed a camera pointing at Alan Kelly's house some years ago but insisted she was not spying on her next door neighbour.

In his evidence Minister Kelly said the camera, which was taken down after a month, was deeply upsetting for him and his family and said it was installed at a time when it was publicaly known he was receiving death threats.

Dismissing the plaintiff's claim earlier today, Judge Petria McDonnell acknowledged it was a difficult and stressful case as the parties involved were neighbours who live in a "lovely location".

She said it was a case where both parties felt aggrieved and she hoped some accommodation could be reached where as neighbours they could "mend fences and live in harmony"

Judge McDonnell rejected Ms Whitehead's claim on a number of grounds.

She said the 72-year-old had not established title over the disputed lane way as the previous owners of her land had abandoned any right to the lane and acknowledged the Kelly's entitlements to it, by seeking their permission to use it.

Judge McDonnell said she was also "forced to conclude" that Ms Whitehead had not established continued, interrupted use of the lane way for 20 years, as required when seeking access by prescription.

Based on her own "honest evidence", Judge McDonnell continued,  Ms Whitehead had admitted there was a period of three years where she did not use the lane and it became overgrown.

The Judge also ruled the 72-year-old did not have a right of access by necessity, as there was access to the field by another route known locally as the High Road.

During the case counsel for Ms Whitehead, Brian Kearney (BL) highlighted the difficulties in using the alternative route and said it was impossible to keep horses in this field without using the lane way.

The Kellys did not seek their costs in the case which Judge McDonnell said was "a sensible and generous gesture".

Junior Minister Kelly was not present in court for today's judgement although the did attend for the three days of evidence of final legal submissions.

Ms Whitehead did not wish to comment after the judgement.

Irish Independent

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