A man has been ordered to stay off a site in Letterkenny earmarked for a major multi-million euro housing development.
Judge John Aylmer this week directed the orders in favour of Burt-based developer PJ McDermott, who sought an interlocutory injunction restraining Mr Noel Devine from entering the 38.5 acre site.
After a series of blockades were erected at the entrances to the site in recent weeks, Mr McDermott sought to have Mr Devine ordered not to trespass further on the ground.
The case was before Buncrana Circuit Court, which heard Mr McDermott’s barrister, Peter Nolan BL, say that Mr Devine was making an “opportunistic” move in attempting to lay claim to the land by way of an adverse possession application.
The site, which comprises two adjacent parcels of land at Glencar Irish and Glencar Scotch, is planned for a major development.
Judge Aylmer granted orders: preventing Mr Devine from blocking the entrances to Mr McDermott’s land; requiring the removal of all materials blocking the entrances to the land; and restraining Mr Devine, his servants or agents, from re-entering the land.
In an affidavit opened by Mr Nolan, Mr McDermott said he became the registered owner of two folios of land at Glencar Irish, Letterkenny, with no objection from Mr Devine at the time.
The lands were purchased via an appointed receiver, Tom O’Brien, with the contracts dated November 2020.
In a statement, Mr McDermott’s solicitor, Gordon Curley, said: “My client was extremely happy with the outcome of the court proceedings as he has maintained that this was a ploy by Mr Devine to unduly enrich himself.
“He now intends to proceed with this much-needed development.”
Mr Nolan told the court that there was an “ongoing planning process”, which involves Donegal County Council and An Bord Pleanála, in respect of the lands.
Plans for 278 residential units – comprising 242 houses and 36 apartments – were rejected by An Bord Pleanála in late May, owing to the density of the project. The application was the subject of an objection by residents’ associations in the area.
Now, Mr McDermott is aiming to make a fresh application for a rescaled development and Mr Nolan said it was vital for his client and agents, including an architect and an engineer, to visit the site on a regular basis.
He said Mr Dermott will lodge a fresh “comprehensive planning permission” application with the local authority and requires “unhindered access to the overall site” in the meantime.
“We have further plans,” Mr Nolan said, “and we have further studies to make”.
Mr Nolan said the first they became aware of any application by Mr Devine was on July 19 last.
“This is a ploy and a tactic to delay the planning process,” Mr Nolan said. “He has no right or entitlement to be on the lands, he never used, farmed or had exclusive possession or laid claim to the lands and did not make any attempt to acquire the said lands.”
Mr Nolan said what happened was a “serious trespass and amounts to criminal damage”.
On July 6/7 this year, the court heard that two entrances – the only two entrances onto the site – were blocked.
Two mounds of boulder clay were deposited at the entrances, galvanised steel barriers were placed behind the existing gates and a one-metre trench was dug on a laneway, causing flooding at the site.
Images of the damage were submitted to Judge Aylmer.
Mr Nolan said that it was his view that Mr Devine “is an opportunist” who was seeking “some financial reward”.
Mr Nolan said a warning letter was only served on Mr Devine on July 12 as “we couldn’t find Mr Devine, as he is a bit of a Scarlet Pimpernel”.
Mr Nolan told the court that Mr McDermott purchased the land for €450,000 and disputed a valuation of €3.9 million made by an estate agent on behalf of Mr Devine.
The court heard that a previous application made to Tailte Éireann in relation to the two folios, by a David Rousltone in 2018, was refused as there was “no basis for the application”. Mr Roulstone took no further action.
In an affidavit, Mr Devine said he and his father farmed the lands in question and the lands are subject of an adverse possession application to Tailte Éireann. He said his father received a Single Farm Payment for over 12 years.
Mr Devine alleged that an “unknown toxic” was sprayed on the land that, having killed vegetation, presented a threat to animals.
“We didn’t create the drainage problems,” he said. “Our cattle drink water there. We have fixed the drainage. We have been there for 20 years and we know all the neighbours, who look after the cattle and ring us about the stock.”
Mr Devine said that he and his father have farmed the lands since 2004. Asked by Judge Aylmer why he did not put Mr McDermott on notice of the adverse possession application, Mr Devine said he was advised to simply hang a notice on the gate.
“We didn’t have a plan when on the land,” Mr Devine said. “We were just there, as the years passed.”
Mr Devine said he contributed towards a residents’ committee which objected to the development plans.
“We want to be reasonable about this,” he added.
Judge Aylmer told Mr Devine that folios are considered conclusive proofs as regards title ownership and said the defendant has done nothing about the adverse possession since as long ago as 2016 when he claimed he and his father were entitled to become the registered owners.
Judge Aylmer said the status quo is that Mr McDermott is the registered owner of the land and has been busy processing a planning application.
Judge Aylmer granted Mr McDermott’s application and gave Mr Devine liberty to make an application to the court when he has had the benefit of legal advice. Costs were also awarded against Mr Devine.
Judge Nolan ordered the removal of any animals on Mr McDermott’s land to the parcel of land adjacent which is leased by Mr Devine.
Mr Nolan said his client did not want Mr Devine to carry out the transportation of the animals. He said Mr McDermott would arrange them to be placed on leased lands of Mr Devine “through the gate he damaged”.
Judge Aylmer granted this order and said: “I can’t have the defendant coming back onto the land.”