A Co Dublin man may have to pay an estimated €500,000 to safeguard a dangerous cliff face from collapsing into the homes and back gardens of his neighbours after a judge was told he had tunnelled into it and stripped it of vegetation.
Judge Francis Comerford heard in the Circuit Civil Court that the cliff and land above and below it, which Thomas Kelly had bought from Shannon Homes, developers of Laraghcon housing estate in Lucan, was a danger to life and property.
The judge also awarded damages to some of Mr Kelly’s neighbours for spying on them by placing cameras overlooking their homes and pointing one of them directly at a householder’s bedroom.
Mr Kelly, who owns three of the 20 houses in Weirview Terrace, Lucan, had been sued by six of his neighbours including journalist John Mooney, Pat Howlett, Paul Lynam, William Stapleton, Pio O’Leary and Edward Roche. They claimed Mr Kelly had secretly bought their back gardens in a deal with Shannon Homes.
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The judge said some of the people involved in the dispute were born in the houses and Mr Kelly had bought number 14 in 1979 and numbers 11 and 12 since. In 2008 he acquired documentary title to the open space behind and beside the terrace and the cliff face behind it as well as land at the top of the cliff.
“The dispute arose because Mr Kelly asserted that none of the others had any ownership in the area surrounding their houses or any right to enter the open area he had acquired behind their homes,” said the judge.
This had led to tensions on the ground and Mr Kelly had installed cameras to monitor the area including at the back of or into his neighbours’ properties.
The court held that the open areas acquired by Mr Kelly were subject to rights of way for the benefit of other householders and, while Mr Kelly could install gates, they could only be locked by a keypad with all householders entitled to a right of way to their back gardens being given the code.
The judge decided that Mr Kelly had substantially interfered with the rights of way and he granted injunctions restraining him from any future interference.
The court held that Mr Howlett had ownership rights to a garage he had built in 1961 on open space and that the predecessors in title to the other houses had acquired adverse possession to the lands at the rear of their respective homes over decades of possession.
This ownership, the judge said, had been acquired prior to 2008 when Mr Kelly acquired his legal interest and those lands did not form part of what he had purchased in 2008. He rejected a claim that residents could park on Mr Kelly’s lands to the west of the terrace.
The court awarded €52,000 damages against Mr Kelly in respect of his breach of privacy of his neighbours by the use of cameras.
The judge also ruled on the separate dispute as to whether works undertaken by Mr Kelly in relation to the cliff and on the land on top of it had caused a destabilisation of the cliff, putting the lives and properties of all householders at risk. He said there had been a significant landslide in the mid-1950s.
He said Mr Kelly or his sons had tunnelled into the cliff face at a spot known as the Henhole before he had become the owner of it in 2008 and this work had intensified in 2016/2017 including stripping vegetation off the cliff face.
The court held that Mr Kelly was grossly irresponsible in carrying out these works without expert advice and there had been rock falls. In 2017 a large rock rolled on to the rear of Mr Lynam’s property and there had been further rock falls after that. The court accepted expert evidence on behalf of the parties suing Mr Kelly that remedial measures were necessary.
The judge decided that if Mr Kelly wished to continue operations on the cliff he would have to put an expensive steel apron in place. If, however, all operations ceased and works were done to make the cliff edge safer and to fill in the tunnelling at the Henhole, a steel or concrete barrier acceptable to the other householders would suffice.
Because of the potential threat to their homes the court awarded payment of €55,000 damages to Mr Kelly’s litigating neighbours but said it would not have to be paid if he carried out the installation of a steel mesh apron. Costs of the proceedings were awarded against Mr Kelly.
Although the judge granted Mr Kelly a stay on the mandatory injunction, the damages and legal costs, he said restraints on Mr Kelly carrying out works on the clifftop and the cliff face or interfering with rights of way remained in force.