About this case:

• Citation:
  [2026] IEHC 153
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Nolan

Delivering judgment for the High Court, Mr Justice David Nolan concluded: “In my opinion a fair balance has been struck between the right of the dominant owners, the rights of the Plaintiff to use and enjoy the land without unreasonable interference, and the general interests of the public and local community in circumstances where there is a national shortage of housing and a growing population.”

Background

The plaintiff was the freehold owner of a plot of land in Co Limerick, surrounded by several housing developments. 

The folio relating to the lands contained a burden on title, registered on 17 August 2016, whereby the property was subject to covenants and conditions referred to in a Deed of Transfer dated 13 July 2016.

Under the Deed of Transfer, the purchaser covenanted with the vendor, being the first and second defendants, and with the owners of the sites on the estate, that the purchaser and those deriving title under him would comply with the covenants, obligations and restrictions set out in the Fourth Schedule.

The relevant covenant stated that the purchaser was “Not to use the sold land for any purpose other than a single private or professional dwellinghouse with the usual out offices…”

The plaintiff obtained planning permission on the plot for the construction of 10 houses, an access roadway, foul and surface water sewers and for ancillary site works on 10 August 2020.

The plaintiff wished to develop the plot in accordance with the planning permission, but the covenant prohibited the development.

In those circumstances, the plaintiff sought an order pursuant to s.50 of the Land and Conveyancing Law Reform Act 2009 discharging the covenant on the grounds that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of its land.

The High Court

At the outset of his judgment, Mr Justice Nolan observed that this was the court’s first opportunity for a written judgment on this issue.

Having considered the terms of the Deed of Transfer and the provisions of s.50, the judge noted that s.50(2)(a)-(i) of the 2009 Act lists the factors which the court must consider before exercising its discretion to discharge or modify a restrictive covenant.

In this regard, the court highlighted that it “must balance the interests of the dominant and servient owners, all of which are relevant in determining whether continued compliance with the covenant would constitute an unreasonable interference with the use and enjoyment of the servient land”.

Having considered JA Pye (Oxford) Ltd v UK [2007] 46 EHRR 1083 and S v United Kingdom ECHR 10741/84, Mr Justice Nolan was satisfied that the covenant was created for the purpose of creating a commercial benefit to the second defendant and not for the purpose of creating any real benefit for the dominant land.

The court explained that the first defendant had not taken part in the case and seemed to be no longer trading, and that the local authority had taken the adjacent Paddocks Estate in charge.

Finding that the second defendant also failed to take part in the proceedings and was in liquidation, the court noted that the liquidators took a neutral position to the plaintiff’s application.

Mr Justice Nolan observed that no party sought to uphold the covenant, a matter which was material.

The court continued: “I also take it into consideration the relatively short timeframe since the covenant was created. As I noted above it is hard to see what benefit the covenant provided to the dominant land. Development has accelerated on the surrounding lands, leaving this piece of land becoming something of a waste land, mainly because of the covenant.”

Mr Justice Nolan considered that the modification or discharge sought married with the surrounding development and the planning permission already granted by the local authority, which conformed with the Limerick Development Plan 2022-2028.

The judge was also satisfied that the Regional Spatial and Economic Strategy identified Newcastle West as a “Key Town” whose attributes include a large population scale, urban centre and functioning as a self-sustaining driver.

The court also had regard to the evidence of a planning expert, who opined that planning permission would not be granted for a single dwelling on the servient lands, a fact which the court also found to be very relevant.

Mr Justice Nolan further considered that the plot, being located in an established suburban residential area, was zoned Tier 1 serviced residential land, as were the vacant open lands to the west of the servient land, and accepted that given the objectives in the Local Area Plan and National Planning Framework, the discharge or modification of the covenant would be in the public interest.

Noting An Bord Pleanála’s opinion that the permission for the development of the servient land would not adversely impact on the residential amenities of adjoining properties, Mr Justice Nolan concluded that in granting the orders sought, a fair balance was struck between the right of the dominant owners, the rights of the plaintiff to use and enjoy its land without unreasonable interference, and the general interests of the public and local community in circumstances where there is a national shortage of housing and a growing population.

Conclusion

Accordingly, the High Court made orders discharging the covenant.

Guia Properties Ltd v The Paddocks Killeline Management CLG & Anor [2026] IEHC 153