John McMenamin understates the case: We desperately need updated and
clearer laws on public access in Ireland.
As the judge says (see story, right), we have never updated the
ancient English laws inherited in 1922 when the State was founded.
England and Wales have moved on to clarify and streamline the laws by
which they create public rights-of-way. Scotland has been even more
sensible, following the Scandinavian model which declares almost all
of the countryside open to those who follow a strict code of conduct.
Meanwhile, Ireland fails totally to protect the basic rights of
citizens to enjoy the countryside. At the same time Failte Ireland
lures walking tourists here under totally false pretences, pretending
that they can enjoy the kind of rights and protections assured in
other modern democracies but exposing them to danger and
disappointments reported continually to KIO by those who have found
routes over private land blocked.
Access remains a political hot potato. The Greens failed while
in office to grasp the nettle. Labour, despite making the right noises
from time to time, does nothing. Fine Gael, despite having a leader
who says he likes to walk, pretends that there is no problem.
Political cowardice rules, regardless of common sense, basic
decency and even the recommendations of well-intentioned judges.
It’s time our pusillinamous politicians woke up to the damage their
cowardice is causing.
Judgment likely to be appealed
THE long-awaited High Court judgment in the Old Road
case has thrown an already confused situation over rights-of-way in
Ireland into chaos.
In a complex ruling, Justice John McMenamin says there
is “a strong case” for reform of the law. He says that while the
law in England and Wales has been changed on a number of occasions so
as to make it easier to create rights-of-way through public use, this
has never happened here.
England this test has been recognised in statutes as allowing a court
to form inferences that a public right-of-way exists. But our law and
English law differ. Law reform is best done by legislation, not
litigation. As other judges have pointed out, there is a strong case
for reforming the law in this area,” he says in his 79-page
In his judgment, Justice McMenamin made a declaration
that no public right-of-way exists along an old green road, variously
known as the Old Road and the Old Coach Road, which runs through the
property of businessman Joe Walker in the Glencree Valley.
However, he went on to say that this ruling only
applies to the two members of a local walking group against whom Mr
Walker had taken his High Court Action.
The judge specifically states that the ruling does not
apply to the public at large or even to other people connected with
At the time this newsletter went to press, the judge
had not yet made a decision regarding costs. The bill for the 11-day
High Court hearing plus total charges by solicitors and barristers for
each side could be up to a million euro.
The two defendants are members of the local Enniskerry
Walking Association who have been campaigning for years to have the
Old Road declared a public right-of-way. Noel Barry, a pensioner, is
the EWA’s secretary. Niall Lenoach, a school teacher, is its
Dr Michael Forde SC, who represented Mr Lenoach and Mr
Barry, is adamant that Mr Walker will have to go back to the courts if
he wants to bar other members of the public from crossing his land.
“This judgment does not bar other members of the Enniskerry Walking
Association or other walking groups or members of the public at large
from walking along this route. If Mr Walker wants to bar them, he will
have to start all over again,” he said after the judgment.
The Judge rejected Mr Walker’s plea for injunctions
barring the public from crossing the disputed route. He also ruled
that since the action had only been taken against the two defendants
and Mr Walker had failed to acquire the Attorney General’s fiat
to ensure that the public interest was represented, that no judgment
could be made against the general public.
At the time of going to press, preparations for an
appeal to the Supreme Court were being made by Mr Lenoach and Mr
Barry’s legal team.
‘What kind of law is it that forces a man to risk
financial ruin for simply stating what he believes to be true—namely
that people should continue to have the right to walk along a route he
knows to have been in use for generations?’
Barry, Secretary of the Enniskerry Walking Association and one of the
defendants in the Old Road case
route has been the subject of controversy since Mr Walker began
barring walkers in 2002. He has repeatedly put fences across the
roadway, erected notices warning of prosecution and turned many
walkers back. He has, at times, hired security guards to block access.
and repeatedly alleged that he
had been attacked, abused and threatened by walkers. However, he
withdrew allegations of assault and a suit for damages when the
current case arrived in court.
Barry said after the ‘What kind of law is it that forces a man to
risk financial ruin for judgment: simply stating what he believes to
be true—namely that people should continue to have the right to walk
along a route he knows to have been in use for generations?’
My father believed this to be a right-of-way. So do
most of the people that I know who have lived in the Glencree Valley.
The law has to change so that the State protects the public’s
interest in these matters rather than leaving it to members of the
public to take a stand against wealthy individuals.”
your say at the AGM
AGM takes place on Saturday, April 14 at the An Oige headquarters,
Mountjoy Street, Dublin 7.
The meeting will
include an discussion of where KIO should place its focus following
the recent judgment in the Old Road case (see above). Coffee will be
served from 11am and the meeting will begin at 11.30. Free off-street
parking and a complementary lunch available.
AG and Minister to examine
Environment Minister Phil Hogan has indicated that the
Attorney General will consider the implications of the recent ruling
in the Old Road case.
In response to a Dail question, Mr Hogan said his own
department and the AG will examine the ruling “when it becomes
Deal to re-open historic graveyard falls through
Helen Carroll of the
Yewtree Graveyard Restoration Committee: "We cant even honour our
Hopes of a compromise deal which would reopen the
historic Yewtree graveyard in Co Wicklow have been dashed.
Peter Doyle, the farmer who owns land which people have
traditionally crossed to reach the centuries-old cemetery, has
blockaded the gate into the field, apparently in a dispute over who
should pay his solicitor.
Wicklow County Council had threatened to take Mr Doyle
to court over his blocking of access to the graveyard. However, in
November the Council announced that they had done a deal with him
whereby a new path would be put in place around the boundary of the
A notice was erected at the entrance to the field in
Balisland, near Shillelagh, announcing that the graveyard would reopen
on December 12. But when members of the local graveyard action
committee tried to gain access to decorate the graves just before
Christmas they found the way blocked and they were told by Mr Doyle
that he was in dispute with the council over his legal fees.
Yewtree is one of Wicklow’s most historic graveyards
and it has been declared a National Monument. Archaelogists
believed that people have been buried there since pre-Christian
times, probably as early as the 7th Century. The last
burial was in 1972 but a number of locals still have the right to a
grave there if they should choose. Both Catholics and Protestants have
been buried there since the 16th Century.
A number of those killed in the 1798 rebellion are
interred there, along with their English foe. There is an ancient plot
for unbaptised babies attached to the main cemetery and great efforts
have been made by the local Yewtree Restoration Committee to tidy up
the grounds, clean off gravestones and erect a monument up to unnamed
children which was paid for by public subscription.
Helen Carroll, one of the organisers of the restoration
group, says: “I cannot believe that Wicklow County Council can
simply sit by and allow a landowner to block access to family graves
and a National Monument. Whatever deal they thought they had cobbled
together has fallen apart but the council seem unwilling to act.”
Helen is one of a large number of local families who have relations
buried at Yewtree. Two of here grandparents lie there.
Wicklow County Council solicitor Ian Munnelly, who
announced the ‘done deal’ in November, did not return a call from
Keep Ireland Open.
expenditure may be key in fight for Fenit
of the notices that greet visitors to Fenit
County Council have engaged a Senior Counsel to advise as to how risky
it would be to take a case against a solicitor and landowner who
continues to block access to Fenit Island.
key consideration for the legal team examining the issue is the
expenditure of substantial sums of money by the council to put in a
roadway partly around the island. In the 2010 Lissadell judgment, the
expenditure of public funds was held to indicate that there was a
recognition and acceptance of a public right to be on land.
That High Court judgment is still before the Supreme Court more
than 15 months after it was referred there.
O’Sullivan, the landowner who has had substantial fences erected to
keep people off the island, is being opposed by the Fenit Action
Committee, a group of locals who have gathered up dozens of affidavits
from people who enjoyed access to the island until he fenced it
several years ago.
include anglers, birdwatchers, hillwalkers and people from Tralee, who
came out for generations on the old Tralee-Fenit rail line.
problem is that if a central plank of Judge John McMenamin’s recent
ruling in the Old Road case is let stand – namely that Irish law does not enable a
right-of-way to be created by public use because we have never updated
our ancient English statutes in the way they have repeatedly in
England and Wales, then showing unopposed use may not be enough.
local councils are understandably reluctant to take court action to
defend public rights-of-way because the law is so unclear and taking
an action is potentially financially ruinous. The Lissadell case, for
example, ran up costs estimated at €6.2 million. Provisional
estimates of the total costs in the recent Old Road case (see Pages 1
and 2) put the total costs at between half a million and a million
result of the continued legal uncertainty is that a requirement in the
2010 Planning Act for local authorities to list public rights-of-way
has become meaningless. Ever-cautious councils are saving themselves a
lot of work – and potentially a lot of money in legal fees – by
listing none at all.
Wanted: the truth about those
nasty illegal fences
In order to persuade the EU to act against the erection
of illegal, unsightly and largely unnecessary fencing in Ireland, we
need evidence of any new fences erected or being erected in hitherto
open areas. Please note that replacement fencing, even if the previous
fences were completely inoperative, are not new and therefore don’t
count. Please send details, and photos if possible, to Michael Murphy
Pinewoods Westport Co Mayo. e.mail:email@example.com
or tel: 09825068.
Access officers – the names you need to know
WHEN you run into an access problem, your first port
of call should be to your local Rural Recreation
Officer. He or she will be grateful for any updates regarding
access and will usually approach the landowner in question to see if
there is a problem which can be solved.
Here is a list of the current RROs:
Ann Lannigan (tel: 057 8661900 or 086 8447338; email firstname.lastname@example.org);
Deirdre Kennedy (tel: 071 9141138, Fax 071 9141162;
Martin Dunn (tel: 0906 488292; email email@example.com);
Maria Munckhof (tel: 066 9472724 -064 41930; mobile:
087 2957780; email: firstname.lastname@example.org;
Con Ryan (tel: 062 33360; mobile 087 0556465; email: email@example.com;
James O’Mahoney (tel: 023 34035; mobiles 0870556465
and 0870556465); email: firstname.lastname@example.org;
Pat Mellon (tel: 0404 46977; mobile 087 7888188)
Thomás Mac Gearailt (tel: 091 593410/091 523945;
mobile: 087 0521339) email: email@example.com;
Tom Carolan (tel: 094 9366692; mobile: 087 2196930)
Eimear McCarthy (tel: 094 9366692; mobile: 086
0495041); email: firstname.lastname@example.org
Published by Keep Ireland Open. KIO is an
environmental organisation dedicated to preserving public access to
our mountains, lakes, seashore and countryside.