LEGAL OPINION:DISPUTES BETWEEN adjoining landowners can be fought with a passion that seems out of proportion to what is involved in practical terms.
Take for example the story of an Achill Island resident who during eight years of legal action ended up in Mountjoy jail on two occasions; in that case a number of complaints had been made by neighbours in relation to the building of an extension, the crowing of a pet rooster and the cutting down of a rhododendron boundary hedge.
Or indeed consider the 69-year-old from Co Laois who was also sent to Mountjoy for a month after plugging the gap between the end of his wall and his property with a wooden fence covered in climbing roses. When the planning officer intervened on foot of a complaint raised by a neighbour and ordered the man to remove the fence immediately, he refused to co-operate and the decision to stick to his principles cost him a month behind bars.
Tales also abound of the planting of spite hedges where one neighbour deliberately blocks another’s view or right to light by the planting of fast-growing conifers.
While the UK has long had a wealth of legislation on boundary disputes it was not until the passing into law of The Land and Conveyancing Law Reform Act, 2009, that Irish citizens were given a comprehensive statutory framework for dealing with such issues.
The 2009 Act provides a mechanism for individuals who wish to conduct works to a shared boundary, where consent is being withheld from the adjoining landowner, to apply for a works order from the District Court allowing for the works to proceed.
The kinds of works envisaged include the maintenance or repair of the existing boundary, construction works on foot of a planning permission, the construction of an exempted development, gardening works in respect of hedges, trees and shrubs, or indeed any other works at, on or near the boundary.
The court has a wide discretion in deciding to grant permission for the works. Any inconvenience caused to the aggrieved neighbour may be addressed by the court making the works order conditional upon strict adherence to certain terms and conditions that may include the payment of compensation.
In relation to that other thorny neighbourhood issue of noise nuisance, the current regime for obtaining noise orders from the District Court pursuant to Environmental Protection Agency Act, 1992, is troublesome as the law does not prescribe an exact level of noise that constitutes a nuisance for residential dwellers.
The proposed Noise Nuisance Bill, however, intends to strengthen the powers of local authorities and the Garda to combat noise pollution by introducing a system of fixed payment notices for noise nuisance offences.
The role of mediation is increasingly recognised as a cost-effective and timely means of resolving disputes between neighbours. Parties are generally more satisfied with solutions that have been mutually agreed rather than a solution imposed by a court where there can only ever be one winner.
Judge Clarke in the case of Charleton v Kenny which involved a retired solicitor and broadcaster Pat Kenny, both neighbours in Dalkey, Co Dublin, captured the nature of the endgame scenario of litigating neighbourhood disputes by strongly advising both parties to engage in a process of mediation in order to steer them away from the court delivered decision that was only going to please one side.
While not all disputes will be amenable to mediation, where a successful outcome is very much dependent on the willingness of the participants to compromise, the Government has, as a principal objective of the proposed Mediation Bill, the intention of obliging disputants to at least consider mediation as an option with their solicitor before taking legal proceedings.
With the cost of mediation said to be 85 per cent lower than the cost of a full court hearing, mediation remains and will continue to develop as an attractive alternative to litigation, especially for neighbours who must continue to live side by side long after the dust has settled on their legal dispute.
Tadgh Kelly is a solicitor and author of Neighbours and the Law, available from Clarus Press, claruspress.ie