Court ruling in favour of property developer over reservoir

Derek Tughan’s company was held to have a right of preemption to a major stretch acquired from its predecessors in 1933 to form the now disused Portavo Reservoir.

A judge also rejected claims by NI Water that the rights cannot be applied because of construction work.

Mr Justice Horner, who visited the popular beauty spot between Groomsport and Donaghadee, said: “I do not consider that what I observed could be considered by any reasonable observer to be lands which were ‘built upon’.”

The reservoir is located close to Portavo House, a large stately home owned by Portavo Estates Ltd.

It fell into disuse in 1992 due to the standard of water quality, with the assessment taken that any upgrade would be uneconomical.

Inspected every 10 years and still used by anglers and wildlife enthusiasts, the estimated costs of decommissioning the reservoir are in the region of £140,000.

Mr Tughan was described as the “driving force” behind Portavo Estates.

He has regularly put pressure on politicians to let his company buy back a substantial part of the reservoir lands and incorporate them into his estate.

The judge said he has been seeking an opportunity to purchase for at least 20 years.

It was agreed by the parties that the acquired reservoir lands are now superfluous to NI Water’s requirements.

Portavo Estates was also accepted as being the successor to the former owners of approximately 80% of the area.

Lawyers for the firm argued that it now had a right to preemption over a substantial section of the reservoir lands.

NI Water’s legal team denied it’s claim, and further contended that no right applied because they are ‘lands built upon’.

Ruling on the dispute, Justice Horner pointed out that preemptive rights would mean others will be entitled to smaller shares of the reservoir.

Any drainage could require the agreement of all with a claim to land.

Rejecting NI Water’s case, he held that a lake created naturally by damming a river could never be described as land built on.

Justice Horner drew a parallel with Turnberry Golf Course in Ayrshire being used as an airport during the Second World War.

Despite having a control tower and planes landing on its previous fairways, he said the course was not ‘built upon’ land.

“I do not consider a manmade lake, together with the buildings which I observed had been constructed thereon, and which occupy a very small percentage indeed of the total land space together with the underground works, are sufficient to allow NI Water to claim that the lands are built upon and excluded from the preemption obligation.”