If Eircom plc and Eircell Ltd want to retain an antennae support structure erected beside the back garden of a Dublin family home, they will have to buy the house, following a decision of Ms Justice Carroll in the High Court.
The judge held there had been a breach of a planning permission and that the structure at Whitehall telephone exchange was erected on some of the parking spaces provided by the permission. Dublin Corporation brought proceedings against Eircom and Eircell.
Ms Justice Carroll in a reserved judgment yesterday said that underlying the corporation's application was the effect which the structure had on the lives of the adjoining owners at Griffith Avenue, Ms Karen Heneghan, her two sons and her husband when he was alive.
They objected immediately to the mast portion of the support structure when it went up in May 1995.
Ms Heneghan had complained of the intrusive visual impact. She was forced to abandon plans for a rear extension of the house. There had been invasion of privacy, nuisance from congregating birds, whining noise during windy weather and illegal parking.
A valuation made in February 1999 showed that the house without the support structure was worth £190,000 while with the support structure it was worth £175,000.
Ms Heneghan had stated in a letter to Telecom in September 1995 that she would like to move but could not afford to do so because of devaluation of the house.
Ms Justice Carroll said she did not accept that Eircom and Eircell were unaware of the breach of the planning conditions.
The parties had explored the possibility of selling the house during the hearing of the case but had been unable to agree on a price.
If a price could not agreed, Ms Justice Carroll would refuse to exercise her discretion not to order the removal of the structure as an unauthorised development. "In my opinion, the right of Mrs Heneghan to the enforcement of the law outweighs any 'public interest' which in fact translates into the companies' interests."