Defendant claims wall he damaged in Portnoo was impeding his right of way

A Glenties man, who is charged with criminal damage by knocking down a stone wall, had his case adjourned for a ruling on an application for a direction from the defence, at Glenties District Court. 

John McLoone, 54, of Tullyard Road, Glenties pleaded not guilty to the charge that allegedly happened on July 14, 2021 at Lackagh, Portnoo. 

He is denying a charge that he did damage, without lawful excuse a dry stone wall belonging to Brian Corcoran intending to damage such property or being reckless as to whether such property should be damaged. 

In evidence, Brian Corcoran, a Belfast resident, said he inherited a property in Lackagh, Portnoo in 2013. 

It was a holiday home. 

In June 2021 he proposed making repairs to his property, in conjunction with his neighbours Mr Sawyer and Mr Thompson to change a right of way that enhanced all three parties including the access to fields for Mr McLoone. 

The witness said he rang the defendant who said he was not happy no matter what way this went around, and it was no good to him. 

The witness said he was taken aback and offered to meet with him, but the latter said he was “down the country.”

The defendant said he did not agree with the witness and that he was going to object but he did not object. 

Mr Corcoran said he submitted a planning application for the changes to the property which was successful and the resultant wall enhanced access for everyone, including Mr McLoone. 

There were other health and safety issues with vehicles passing in front of his and his two neighbour’s doors. 

He added that both he and Mr Sawyer had given up parts of their garden to make way for the new road “at our own expense and we didn’t ask Mr McLoone for any contribution.” 

And at no time did the defendant not have any access to his fields.  

The witness said that a builder, George Barrett took charge of the refurbishment, tidying up the cottage, putting down gravel, a new frontage and building the wall in line with the planning permission. 

Mr Corcoran said that he got a phone call from his neighbour Mr Sawyer on July 14, 2021 that he had seen on CCTV that the wall had come down. 

The witness phoned the builder Mr Barrett to go and see what happened. 

The builder went to the property and confirmed what happened and contacted the gardaí. 

The witness drove from Belfast to Donegal and made a statement to the gardai. 

He added that the cost of the wall was €2,500 and the defendant had no permission to interfere with it. 

The witness said he was following the planning permission that was granted. 

In cross examination from defence solicitor Frank Dorrian, the witness said he was retired and was previously involved in the timber business. 

Mr Dorrian told the witness that he could apply for as much as he wanted, but the defendant had a right of way and getting planning permission “does not” take away the defendant’s rights. 

“His right trumps your planning permission,” said Mr Dorrian. 

The witness said he had applied to change the right of way and it was granted. 

Mr Dorrian said his client had a right of way that went past the front door of the witness and the witness sought to remove it for his own benefit and the benefit of his named neighbours. 

The witness said he believed it was an enhancement of the defendant’s right of way at the gate. 

“Legally, you are wrong,” said Mr Dorrian. 

“Mr McLoone has a right of way which has been blocked by a wall built by you.”

The witness said it was an “enhanced right of way at his own expense.”

The court heard the defendant had a right to object but did not do so. 

Mr Dorrian said his client had no reason to do so because the planning permission did not entitle the witness to anything. 

The witness said his argument was that the defendant acted unreasonably because he had an “enhancement to his field.”

The court heard this matter had been settled in the circuit court. 

The witness added that in his terms: “The wall will be there forever and a day”. 

Mr George Barrett told the court he was a builder who did some work for Mr Corcoran and the damage to the wall had amounted to €2,500. 

He said he got the call to go and see the damage that was caused to the wall on July 14, 2021. 

He took some photographs and sent them to Brian Corcoran. 

Mr Dorrian said that in a statement to gardaí this witness said the old right of way was enclosed at the private front garden of Brian Corcoran. 

The witness said he did not recall making this statement. 

Mr Dorrian said the existing right of way had been sealed off as Mr Corcoran’s garden. 

Garda Noel Gavigan said he got a call on July 14 2021 to attend Lackagh, Portnoo where a civil dispute was going on between John McLoone and Brian Corcoran 

The garda spoke to John McLoone who was on his way to the property, and he confirmed what had happened. 

The garda then spoke with Brian Corcoran. 

Brian Corcoran told the garda he had got planning permission to build the wall and he had spoken to the defendant about building a new access to his right of way.  

On August 7 he took an injured party statement from Brian Corcoran who gave the garda CCTV relating to the incident. 

The garda then took a cautioned statement from the defendant on September 26. 

The defendant said he had the land since 2015 and had a prescriptive right of way to this property. 

The defendant said Brian Corcoran had invaded his privacy and impinged on his right of way. 

He said that Brian Corcoran was in no position to offer a right of way and it went through a third party’s land which could be construed as “trespass.”

The defendant said he removed the “impediment” with his digger, and he had the right to do it as he had a right of way. 

Photographs of the alleged right of way were shown to the court. 

Garda Owen McBride told the court that he got a call about criminal damage in Lackagh, Portnoo on July 14. 

He spoke to George Barrett who said he had built the stone wall and he told the garda that the wall had been knocked down during the previous night. 

This witness told the court that Mr McLoone had said he guessed the garda would be wanting to talk to him. 

The defendant said he was busy and had two children with him but said he would speak to the garda in due course. 

Mr Dorrian said the defendant said that the right of way to his land had been interfered with and he took steps to deal with this situation. 

Mr Dorrian said the defendant had a right to remove the wall and he did not need permission to do so under Common Law. 

The solicitor said that Mr Corcoran was in no position to offer a right of way as it went over a third party’s which could be interpreted as trespass. 

In a legal argument, Mr Dorrian asked for a direction and quoted Section 6 of the Criminal Damage Act which he said stated that the defendant had a lawful right to abate the nuisance of the blocking off of his right of way.  

Mr Dorrian said that, in law, it was immaterial whether the defendant was right as long as he held an honest belief that he was right. 

Judge Eiteáin Cunningham said she was adjourning the case to Dungloe District Court on February 14 to give a ruling on Mr Dorrian’s application for a direction.