Newsletter 43 Spring 2011
million reasons to change the law
ANYBODY in doubt over the
need to completely overhaul the way this State deals with access
disputes need look no further than Sligo, where the marathon Lissadell
estate case judgment handed down on December 20 has produced legal
bills in excess of €6 million.
That Judge Bryan McMahon’s
reached the excellent conclusions that four public rights-of-way exist
and that the costs of the case rest with the plaintiffs is to be
commended. But the fact that such a huge sum of money had to be spent
to establish the public’s right is part of the reason why Ireland
has fewer secured walking routes than almost anywhere else in the
Keep Ireland Open has
argued for years that what is needed is a standing commission to rule
on access disputes. It could be chaired by a Senior Counsel with
expertise in property law and its decisions would be indicative rather
than binding. Such a commission need not deprive landowners of their
constitutional right to take action in the courts. It would, however,
provide a badly-needed first stop in disputes that currently only
succeed in enriching the creatures of the Law Library and making local
councils terrified of including walking routes in their County
Development Plans lest it embroil them in the kind of terrifying and
potentially ruinous legal gamble seen in the Lissadell case.
Important: AGM on April 16
KEEP Ireland Open’s Annual General
Meeting takes place on Saturday April 16 at the An Oige headquarters
in Mountjoy Street.
Proceedings will get under way at 11.30
but we suggest you come along at 11 and have a cuppa.
As your newsletter goes to press, we
are sounding out a number of potentially very interesting keynote
speakers but had better not tempt fate.
So come along. Have your say. Tell us
how we can do a better job lobbying for your rights to access our
mountains, shores and monuments.
Block the plan to sell off
real risk that Coillte will be privatised to replenish the state’s
coffers. The recommendation to sell our forests is made in Professor
Colm McCarthy’s Bord Snip Nua. The programme for Government talks
about a merger between Coillte and Bord na Mona which probably doesn’t
In the run-up to the
election we asked main political parties how they stood on the
proposed sell-off. This was their response:
Gael: Fine Gael will merge Coillte
and Bord Na Mona into a new company to deal with renewables.
We are opposed to any proposed sell-off of Coillte.
Fail :(for what it’s worth after their trouncing at the
polls): "…has no plans to sell off
any part" of Coillte. However, the role and stewardship of
Coillte is being reviewed by the Review Group on State Assets, chaired
by Professor Colm McCarthy.
Fein: We will be opposing any
attempt to sell Coillte.
Greens: The Green Party is opposed
to the sale of Coillte, along with a number of other state assets.
Since the election,
Labour have indicated that they will not support the privatisation and
sell-off of Coillte so this may put a brake on Fine Gael’s
The retention in
Coillte in public hands is of vital concern to all recreational users
of our forests as 7pc of our land belongs to Coillte.
As you are probably
aware, there was a British Government proposal to sell off state
forestry in Britain. Following a huge public outcry the idea has been
We need to head off
this possible catastrophe . A signature campaign is being organised by
the woodland league. http//www.woodlandleague.org.
Please add your signature.
Meanwhile, we intend to
seek reassurances from the Labour Party that they will not allow this
privatisation to go ahead.
that judgment over Lissadell is so important
Over-the-top: Barbed wire fencing erected at Lissadell House
following the judgment
THE ruling by High Court
Judge Bryan McMahon that Sligo County Council was right to claim that
four public rights-of-way exist across the 110-acre Lissadell House
estate in Co Sligo is the most important judgment made in decades on
the vexed question of the public’s right to access private land.
The decision effectively
overturns an earlier inexplicable ruling by a seriously ill judge
which has bedevilled access law since it was made 2005
(Collen vs Lenoach). That strange ruling by the late Justice
Sean O’Leary effectively held that a public right-of-way could only
exist if it had been dedicated as such by a landowner – preferably
in writing. In making this assertion, Judge O’Leary flew in the face
earlier judgments which held that a right-of-way could be created
through public useage – that is by the public using a route
unopposed over a period of years. Judge O’Leary, who died of a brain
tumour shortly after making his ruling, also overturned a previous
judgment made in the Wicklow Circuit Court by Judge Bryan McMahon
which held that there was indeed a public right-of-way created by
unopposed public useage in the Collen vs Lenoach case.
It is ironic that Judge
Bryan McMahon, elevated to the High Court since that earlier judgment,
ended up presiding over the longest, most expensive right-of-way case
of modern times. Judge McMahon does not pull his punches in rejecting
the notion promulgated by Judge O’Leary that a right-of-way must be
granted in writing by a landowner, saying that it is time to lay aside
the "legal fiction" that a landowner’s specific dedication
is necessary for such a right to exist.
This has enormous
implications for the working of the law and will doubtless form the
cornerstone of the appeal being made to the Supreme Court by Constance
Cassidy and Ed Walshe, the owners of Lissadell House.
The success or failure of
the Supreme Court appeal will be watched carefully by the legislature.
If the appeal fails and Judge McMahon’s decision is upheld, this
will be regarded as a vindication of the law’s capacity to protect
public access and will reduce the likelihood legislative change. If,
however, the Supreme Court reverts to the view expressed by the late
Judge O’Leary, this will underscore the near-impossibility of
establishing public rights of access in the courts and will make
legislative change more likely.
Either way, the judgment
will have substantial knock-on effects. The 2010
Planning Act requires local councils to list and protect public
rights-of-way. Ever since Judge O’Leary’s ruling, councils have
had a ready-made excuse to do nothing to protect public access. They
could simply say: "The High Court has ruled that there can’t be
a public right-of-way unless a landowner dedicates that right."
Since only a tiny fraction of public rights-of-way or access routes
have ever been clearly dedicated in writing as such, Judge O’Leary’s
ruling has meant that very few councils have been willing to list
rights-of-way for fear of court actions. That is why so few routes are
listed in County Development Plans nationwide.
It was Sligo County
Council’s decision to list the routes cross Lissadell in their 2009
County Development Plan which sparked the Lissadell action.
If, however, Judge Bryan
McMahon’s ruling that rights-of-way can indeed be created by public
use, then councils would be on much stronger ground in listing
putative rights. Whether they actually do so will depend upon public
pressure and the willingness of the Minister for the Environment to
require them to apply the 2010 Planning Act
It is important to
remember that Sligo County Council offered to withdraw three of the
four rights-of-way across the Lissadell estate from the County
Development Plan if Lissadell’s owners would cease to block one
crucial short cut down to the nearby beach. The council only went
ahead with the case reluctantly after this compromise offer was
had tried to reach a compromise
Sligo County Council
offered to withdraw three of the four rights-of-way across the
Lissadell estate from the County Development Plan if Lissadell's
owners would cease to block one crucial short cut down to the nearby
beach. The council only went ahead with the case reluctantly after
this compromise offer was rejected.
with Supreme Court appeal, urges judge
Justice Bryan McMahon: His crucial ruling may make it easier to
establish public rights-of-way
Having given his marathon
177-page judgment and awarded the estimated €6m-plus costs against
the plaintiffs, Judge Bryan McMahon granted them leave to appeal to
the Supreme Court.
However, he urged that the
grounds of the appeal be kept as narrow as possible to speed up the
process and expressed the wish that the appeal might be heard within a
year rather than within the more normal two-year timespan. Meanwhile,
he put a stay on paying out the enormous costs awarded to the council.
It is highly likely that
Walshe and Cassidy were advised that they would win their case because
of Judge O’Leary’ earlier ruling on dedication (see above). That
Judge McMahon effectively rejected O’Leary’s assertions is
expected to form the centrepiece of the Supreme Court appeal.
Bitter ‘old road’ case
awaiting High Court judgment
ANOTHER long-running public access case was heard in
the High Court in Dublin in February.
What has become known as "the Old Coach
Road" case is the latest chapter in a 10-year battle to keep a
long-standing walking route in the Glencree Valley open to the public.
The case arose when landowner Joe Walker took out an injunction
against two members of the local Enniskerry Walking Association
claim the route is a public right-of-way. The matter was given a
seven-day hearing before Justice John McMenamin even though it was
originally scheduled to last just four days.
Members of the Irish Ramblers, the An Oige Hillwalking
Club and three other walking groups gave evidence of using the route—in
some cases for up to 50 years. These were followed by seven local
witnesses, some of them elderly, who said they knew the route to be an
old road, and opposing map and historical experts. The
ironically-named Mr Walker has become a prominent campaigner against
access rights and for the Enniskerry Walking Association to win the
case would provide food for thought for other landowners—especially
if the substantial costs were to be awarded against him. Noel Barry
and Niall Leonach of the Enniskerry Walking Association, who have
taken an enormous risk in fighting the case against a very wealthy and
determined adversary, are to be commended for their courage. Justice
McMenamin is expected to give his judgment in late April or early May
Nothing in it for us
THE Programme for
Government is a profoundly disappointing document
as there is
absolutely nothing of any relevance to KIO. Of particular concern is
the total absence of any commitment on the part of the Labour Party to
deal with access issues. This is a step back from their stance before
the 2007 General Election when it was a plank of the party’s
manifesto that Labour in power would introduce Ruairi Quinn’s
proposed law designed to make it easier to establish rights-of-way and
access routes through compulsory purchase. The Quinn Bill would also
have extended the right to roam in upland areas. Since then, Labour
has rowed back on this progressive position. When KIO contacted Mr
Quinn in January after the election had been called, he was unwilling
to give any commitments, saying the party "will
work with stakeholders to open up the countryside and our coastline
for recreation and tourism in a legislatively sustainable way."
He added for good measure:"We are the only Party with a good
record on this matter." But that was then, Ruairi. This is now.
eye’ to fence fiasco may have an expensive outcome
Despite EU fines over illegal fencing, the Irish Government seems
determined to turn a blind eye and even to fund more of the same
Quite unbelievably, in
spite of the imminence of daily fines on Ireland for failing to comply
with an EU directive to protect sensitive landscapes from development,
a new rash of fencing is being erected in upland and other areas of
rough grazing. The Dept of Agriculture in furtherance of the nitrates
directive is forcing farmers to increase their land-holding to enable
them to assist with slurry spreading. This extra land, much of leased
from Coillte, is required to be fenced. And, disturbingly, grants are
available. What a mess! In conjunction with Friends of the Irish
Environment KIO is seeking an urgent meeting with the Minister for
Agriculture Simon Coveney. We have also written to the EU Commission.
The Irish planning
regulations are quite clear: planning permission must be applied for
and granted before new fencing can go up on land that has been open to
access by recreational users. Department officials are informally
advising farmers not to bother applying for planning permission.
We are asking all
individual members and affiliated groups to let us have details of any
new fencing erected within the last five years.
Hundreds march against fencing
Nasty notice on Fenit Island
THE ongoing and
increasingly bitter dispute over fences erected on Fenit Island in Co
Kerry continues, with tw recent protest marches attended by more than
The fences – great metal
structures more than two metres high in places – restrict access to
a pathway traditionally used to walk around the island and to access
Fenit Castle, a 16th Century ruin.
The battle over the fences
has intensified since they were erected more than three years ago,
apparently at the behest of an Ennis-based solicitor and landowner
Seamus O’Sullivan. The move has divided islanders, with a small
number supporting the fencing move and others calling for a return to
Protest walks on February
6 and St Patrick’s day drew hundreds of supporters and the Free
Fenit Committee set up to campaign over the issue are considering
taking a legal action once they have ascertained whether or not O’Sullivan
applied for and received the planning permission required to fence an
area traditionally open for recreation.
The fences – hideous,
ugly affairs – have aroused a great deal of passion and opposition
and local TD Martin Ferris is among those who have objected personally
to O’Sullivan. If Kerry County Council’s Planning Department
cannot protect one of the most beautiful areas of the country from
this kind of ugly, intrusive fencing then you would have to wonder why
they are there at all.
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.