Judge in dispute over extension of house

When Fintan and Marianne Lismore bought a period house with sea views in the Sutton area of north Dublin, they thought of it …

When Fintan and Marianne Lismore bought a period house with sea views in the Sutton area of north Dublin, they thought of it as their "dream home".

But more than three years later they are living in two rooms of the fine 148-year-old building, with no inside running water or cooking facilities apart from a microwave oven.

Their portable toilet outside their front door is rented, the boots of their cars have become wardrobes, and the rear annexe they were reconstructing remains only half-built.

The Lismores' situation stems from a protracted legal dispute with their neighbour, a High Court judge, Mr Justice Thomas Smyth, his wife, Patricia, and their son, Thomas jnr. Mr Justice Smyth this month became one of the State's best-known judges when he imposed a prison sentence on Mr Liam Lawlor TD.

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The judge specialised in planning and local government law as a barrister, and he and his wife obtained an injunction in 1997 against another local resident who was building an extension. Agreement was subsequently reached in that case.

Mr Justice Smyth and his family obtained two interim injunctions against the Lismores in the autumn of 1999, preventing them from using their drains or carrying out further building work. These High Court actions were based on the fact that the judge's son, Thomas jnr, has extensive legal rights over the Lismores' property at 15 Station Road.

This follows an agreement he made with the previous owner of the Lismores' house when he bought a large portion of its back garden for £5,000 in 1987. Mr Thomas Smyth jnr subsequently leased this land to his parents. The covenant binds the owners of the property "not to build on or about or upon the house premises and lands".

The three Smyths were granted their injunctions restraining the Lismores from breaching this agreement, or planning laws, after the Lismores started rebuilding the house's annexe in 1999.

In her first High Court affidavit, Mrs Smyth claimed the Lismores failed to provide adequate or any plans, specifications and drawings which the Smyths requested and which might have enabled them to consider the Lismores' proposals properly.

She also claimed the Lismores had started work on their premises which gave rise to "grave concerns" that they were about to carry out works in contravention of the covenant.

She said photographs of the work showed that the height of the rear extension was substantially greater than the original and appeared to suggest that the Lismores intended to put a flat roof on it instead of a pitched roof.

In his replying affidavit, Mr Lismore said his builders had mistakenly built the extension too high and he had taken steps to remedy this before he was contacted by the Smyths. He argued that the work they had carried out was not a breach of the covenant and claimed the Smyths were asking for unreasonable preconditions.

In a subsequent affidavit Mr Lismore said he and his wife were "suffering much anxiety and distress at having been unable to occupy our family home, which was purchased as long ago as July 1997".

The case has not yet gone to a full court hearing.

The Lismores, both in their mid-40s, bought the semi-detached house at Station Road in Sutton, north Dublin, in the summer of 1997. Mr Lismore says they were aware of the covenant.

He says he spoke to Mr Justice Smyth and showed him architects' drawings of their proposals to renovate the house and add bedrooms within the existing footprint.

Shortly afterwards, Mr Justice Smyth sent Mr Lismore a lengthy and detailed letter setting out aspects of their plans to which he objected and others to which he had no objections.

This letter of July 25th, contained in Mrs Smyth's High Court affidavit, concluded: "In the absence of express consent, please take it that there is objection to the intended development. It would be prudent to approach any element of doubt arising from my views in a like frame of mind."

Despite extensive discussions, legal correspondence and expert reports, the neighbours have been unable to reach any accommodation, formal or informal.

The Lismores say they have amended their renovation plans several times, although Mrs Smyth stated in her affidavit that early amendments left the Smyths with "no clear indication of what works the defendants proposed to complete".

The families' legal teams last held talks several weeks ago, according to the Lismores.