Council fails to overturn decision on lands at rear of banker’s home

Dublin City Council has failed to overturn court orders granting a woman possession of lands the size of a hockey pitch at the rear of her home in Marino, Dublin.

Mary Byrne, a bank official of 33, Brian Road, Marino, argued the land, just under a quarter of an acre, was a garden in her family's possession and used for decades and she acquired possession when she bought the house in 1993.

The land was a leftover portion of a 1934 construction site behind houses and back gardens of a development bordered by Brian Road, Brian Avenue and St Declan’s Road in Marino.

Ray Delahunt, for the council, which has a paper title to the land, disputed Ms Byrne’s entitlement to possession and said it wished to subdivide the lands between neighbours in the vicinity.

The High Court's Mr Justice Charles Meenan on Thursday dismissed the council's appeal against a Circuit Civil Court ruling Ms Byrne was entitled to possession.

Mr Justice Meenan held she had acquired title in February 2008 to the land by adverse possession, 12 years after the council served a notice to quit on her which it failed to follow up.

Ms Byrne smiled and hugged her solicitor after the judgment.

Some of her neighbours were in court and were clearly upset at the outcome. Breda Logan, of St Declan’s Road, said it had been hoped the land could be used as a communal space, particularly for the benefit of children.

Old allotments area

Ms Byrne acquired the house, formerly her grandparents home, after the death of her grandmother in 1993.

She told the Circuit Court she tended and maintained an old allotments area leased by Dublin Corporation to her grandfather since the 1930s and passed down to her through her grandparents who paid rent on it, amounting to 128 pence per annum, to 1985.

Judge Francis Comerford granted Ms Byrne a declaration the lands were now hers, adding the council had missed an opportunity to turn the property into a public amenity or return them to allotments status for local residents.

Dismissing the council’s appeal, Mr Justice Meenan said his view is the land is a “garden” and the court must establish whether Ms Byrne was using it in a manner consistent with it being her garden.

Ms Byrne’s grandfather had used the lands for growing fruit and vegetables and also kept hens. His widow came into possession of it after his death and fenced off part of it with the effect access could only be obtained through Ms Byrne’s house.

In the years before the grandmother’s death, the growing of fruit and vegetables effectively ceased and it was in that situation Ms Byrne acquired her interest in 1993.

Act of ownership

Gardens vary between the “well manicured” and those “handed back to nature” and this one fell between the two, he said.

Ms Byrne gave evidence of mowing the grass regularly, keeping the boundaries in shape, occasionally holding family events in the garden and since 2009, she also undertook some significant improvements including laying a patio area.

The judge attached “little weight” to evidence from neighbours that they rarely saw Ms Byrne in the garden.

Ms Byrne is in full-time employment and, apart from a lodger, lives alone and it was “not at all surprising” she was not more frequently seen in her garden, he said.

The council had no involvement with the land, did not cut grass, maintain boundaries or provide access other than through 33 Brian Road, a private residence, he said.

It was not until 2015, when Ms Byrne renewed her application for adverse possession, that gates or doors were constructed by neighbours in boundary fences or walls to enable them get access, he said.

He concluded Ms Byrne had both intention to possess the land and factual possession of it. While the council has paper title, it carried out no act of ownership on the land since serving the notice to quit in 1995, other than indicating a desire to subdivide the land between neighbours.

He was satisfied Ms Byrne acquired title by way of adverse possession on February 20th, 2008, 12 years after the notice to quit expired.