Newsletter No
29
Summer 2006
Editorial: Glencree Right of Way
case is lost
This issue has an informative article on the Glencree
case written by Albert Smith, (see lead article) who has long been at
the frontline . We hardly need say that we commiserate with him and all
the members of Enniskerry Walking Association who have worked so hard
for so long on this case only to see it lost.
If nothing else, the Glencree case is instructive in
one important respect. The Minister in charge of tackling the question
of access, Mr O'Cuiv, is on record as saying that there are lots of
rights of way over private land in Ireland, though they do not need to
be marked on the maps, signposted or even recorded by the local
authority concerned. Now even he, and more importantly the many walkers
who thought that these nebulous 'rights of way' actually exist, can see
plainly for themselves what this means.
What this means is that you have a right to walk these
'rights of way' until you are told by the landowner, or indeed anyone
who acts as if he/she were the landowner, that you have no such right.
Then you have the option of abandoning this 'right of way' or of risking
many thousands of euro to fight a case, and even then you haven't much
of a chance of winning. So if nothing else we should now be able to see
exactly where we stand: rights of way Irish-style are just a means of
convincing walkers that they have rights, but these 'rights'' don't
amount to a row of beans. Since they aren't even recorded anywhere the
old cliché about not being worth the paper they are written on is for
once appropriate: they aren't even recorded on paper! We reiterate once
again: it's high time the law was changed.
A travesty: The
Glencree judgement
KIO has been warning for years that our lack of
legislation and judge-made law on rights-of-way is awful and makes it
almost impossible to establish any right for reasonable public access
through the courts. Well, thanks to a recent judgement of truly
breathtaking stupidity, that appalling situation has just become a great
deal worse. In a ruling handed down by High Court Judge Sean O'Leary on
June 19th the bar for establishing a right of public access has now been
set so high that it is hard to see how the vast bulk of walking routes
will survive if its logic were to be applied nationwide.
The case, taken by builder Neil Collen, blocks off
access through a small field at the end of a laneway called Lambe's Lane
in the Glencree Valley. This small field enabled walkers and locals to
access a Coillte footbridge across the Glencree River and saved a 3-mile
road walk around the head of the valley.
Circuit Court Judge Brian McMahon ruled a year ago,
after a 3-day hearing, that the route was a public right of way. Collen
appealed this judgement to the High Court, demanding a full re-hearing.
Despite having 13 witnesses testify that the route had been used by
walkers back into the mists of time, High Court Judge O'Leary (a former
Fine Gael Senator) ruled that it could not be regarded as a public
right-or-way because no previous owner had clearly dedicated it as
such.
Since the route in question, across the Glecree
Valley, was part of the Powerscourt estate until the 1950's, 19th
Century English law was used to demonstrate that only the Powerscourts
(referred to in the statutes as the 'Lords of the manor'!) would have
had the right to publicly declare the route as a public right-of-way
until then. Since they didn't and since no landowner since then did
either, the judge ruled that the testimony of a variety of users just
does not count.
In every other jurisdiction in Europe, it is
sufficient to prove use over a sustained period for a right of public
access to be secured. Nor here. Now ask yourself: how many of the
walking routes that you enjoy have been dedicated for public use, in
writing, by landowners? Virtually none. And that is how many
rights-of-way will be left unless legislation protecting access is
passed by the Oireachtas as a matter of urgency.
Even Judge O'Leary seems of that view. He adds, almost
wearily at the end of a remarkably one-sided judgement, that it is now
open to the legislature 'to address how to provide facilities for
walkers while respecting the rights of property owners. What should be
clear from this action is that the use of the concept of public
rights-of-way as a mechanism for creating new or reviving old rights for
walkers is unlikely to lead to a satisfactory overall solution.' This
last sentence is judge-speak for don't come into my court expecting me
to vindicate the basic civil liberty of access which exists in every
other country in Europe.
The only good news is that this judgement and its
wider implications are so appalling that Labour TD Ruairi Quinn has
given a commitment that he will move to introduce a bill to protect
walking rights in the autumn. The other good news is that the Enniskerry
Walking Association, one of the few effective campaigning groups on this
issue, have vowed to continue their fight to identify and protect
rights-of-way despite the huge disappointment of losing a case that they
had previously won. EWA chairman Niall Leonach, the defendant of the
Collen case, said: 'This ruling is so perverse that it has to become a
turning point in this campaign. If its logic were to be extended, there
would hardly be a footpath left in the country." It is time to
change the law.
Albert Smith
(Albert is a leading member of the Enniskerry
Walking Association and has been involved in this case since it first
arose.)
The Media
The results of the Glencree case on a contested
right-of-way generated a good deal of interest in the press and on TV.
The Irish times had an editorial following on from the case. It called
for legislation to resolve the issue of access generally and was highly
critical of the farmers' obdurate stance. In spite of the editorial's
title "Walkers 'Right to Roam' "there was disappointingly
little about this in the editorial itself.
The other press comments ranged from an article by
Mary Ellen Synon in the Daily Mail, peddling an ignorant abusive
anti-walker line and exemplified by the title 'Right to Roam? No, Keep
your woolly socks off Private Land', to a well-researched balanced
article by Anne Marie Hourihan in the Sunday Tribune. KIO responded to
the latter in a letter by emphasising that access was not an urban/rural
dispute but a landowner/non-landowner one. There were also a number of
letters in the national press, mostly on our side.
Two members of Keep Ireland Open spoke on Questions
and Answers on RTE1 in June, and were the only members of a national
recreation body to do so. The unsatisfactory outcome of the Enniskerry
case was referred to, as was the extortionate demand by the IFA for
payment for walkways: €5,000 per km and €1,000 per farm, all per
annum.
The Léargas RTE1 Programme in March about access to
the countryside did not feature KIO or indeed any of the usual suspects,
except Dermot Somers. It concentrated on locals in the Sligo area,
including the farmer whose habit is to assault walkers, in predictably
unrepentant mood. Léargas is coming to the conclusion, to quote a
national newspaper previewing the programme that 'many of the disputes
are not just about ownership and access. Is the bottom line all to do
with money?'
In April, following an attack on KIO by Malcolm
Thompson, President of the farming organization ICSA, there was an
exchange of letters in the Irish Times. The ICSA chief could not credit
that KIO would object to grants to farmers, but Roger Garland, the KIO
chairman, pointed out once again that we had some regard for the public
purse (apart from that if farmers get huge sums for access then very
little access will result since the government havn't got infinite
amounts of cash). Albert Smith of KIO and the Enniskerry Walking
Association took on the same Malcolm Thompson in a discussion late in
April on 2FM. Mr Thompson might have learned from this interview that
you have to be on very strong ground before you call your opponent a
'fascist', especially if one of your more prominent supporters is in the
habit of assaulting people with whom he disagrees.
Walking World Ireland had this to say about the
Glencree case in their editorial.
'Seize the day! It is an old truism that the
hearing ability of politicians improves markedly in the run-up to a
general election, and deteriorates alarmingly when the election is over.
With an election inevitable within the next year, it is now time for
walkers to make themselves heard, especially in light of the
disappointing ruling in the High Court on June 19th last by Mr. Justice
Sean O'Leary.
In a case over a disputed right of way in Enniskerry,
Co Wicklow, Judge O'Leary found in favour of the landowner, who claimed
that no public right of way existed across his land. The judge
commented, 'what would be clear from this action is that the use of
public rights of way as a mechanism for creating new or reviving old
rights for walkers is unlikely to lead to a satisfactory overall
solution'. He went on to point the finger at the legislature, in effect
saying that access was an issue for lawmakers to sort out, not the
courts.
Given the well-known weakness in this matter of local
authorities, it is now clear that walkers and other outdoor users need
to concentrate their efforts on forcing the issue to the top of the
agenda with national politicians, in particular members of the two
larger parties, who have shown little interest in it so far. Get on the
phone or e-mail them today and raise access with them when they call to
your door. If enough people do it, they'll get the message'.
We couldn't agree more. WWI has been 100% behind KIO
in our demand for reasonable access to the countryside.
We generally have a good success rate with WWI as you
may have noticed. Perhaps the Irish magazine outsider is not read by
many of our readers. Here is a recent letter which appeared in their
latest issue:
Dear Editor,
We note the statement by Declan O'Keefe of the MCI '
that within Comhairle na Tuaithe the MCI is representing outdoor
enthusiasts'. While this is true, KIO is also involved with C na T. KIO
representing as it does the Scout and Guide Associations, An Óige, The
Irish Ramblers and many other national associations and walking clubs,
has a much broader membership as well as having many times the numbers
of members MCI have. Declan also says 'a legislative solution may be
needed, but it is likely to take years to achieve'. Probably true, but
why not make a start now? It took the Ramblers in England seventy years
to reach their goal but hey got there in the end. We intend to make this
an election issue. Political parties please note.
Yours etc. KIO
Not Published
Members who read news, articles or letters in the
papers and see no response from KIO may wonder was a response made. We
do respond to most issues requiring comment but, of course, many of our
letters and press releases are not published.
Letter to Irish
Times
There was an error in our letter to the Irish Times on
August 23 "Walking the Wicklow Way". In our reference to the
route from near Pier Gates linking up with the road to the west side of
Lough Dan we erred when we placed the route along the valley of the
Cloghoge River, whereas, as those of you who know this well-used route
are aware, it actually goes diagonally down to the river to the remains
of the stepping stones at Ballinrush. Access is now denied to this most
scenic route which also links up with a looped walk through the
"deserted village". This is quite clearly an established
public right of way and is one of the many we are trying to get the
County Council to list.
Action being taken
by EU on Fencing
The action against Ireland on fencing in upland areas
is continuing and we have supplied much information, maps and
photographs to DG Environment in Brussels
and they are hopeful of a satisfactory outcome.
Green Party and
annual conference - Freedom to roam
The following motion was passed at the conference by a
large majority: The Green Party calls for freedom to roam over rough
grazing land (about 7% of the total land area) and will publish an
appropriate Bill'.
KIO'S AGM
This was held on April 1st. There was an attendance of
about 20 and several lively discussions. Seamus Boland of Irish Rural
Link, a rural but not farmer-based organisation, gave an inspiring
address in which he pointed out that there were many people living in
rural areas who were not in farming and hadn't got identical interests
with farmers.
Extension to Wicklow
Mountains National Park
In April the National Park authorities announced that
they had purchased six square kilometres of land (1,600 acres) from
Garech de Brun of the Guinness family, who owns a large swathe of land
of which Lough Tay is the centrepiece. The land in question is that on
the right just south of Sally Gap as one comes from Dublin on the
Military Road. It has a great strategic importance because it unites two
large sections of the park. The cost, of €1.75 million works out at
approx €1000 per acre. Over the decades the Guinness family has been
more than generous in allowing so many people over their land without
quibble: we are happy to acknowledge their generosity. Still it is a
pity that this land had to be bought outright by the state and that the
NP authorities could not have entered into a Management agreement with
the owners to guarantee access.
Keep out
notices
Keep out notices
are now so commonplace in amenity areas in the counties along the
western seaboard that they hardly register. However, a new one which has
appeared on a particularly barren piece of land near Barley Cove in west
Cork is worth a mention. What a turn off for a visitors!
Plans for the
Autumn
We are planning a public meeting in Sept/Oct to try to
involve other groups and individuals who have not yet joined KIO.
Needless to say existing members are more than welcome. We have a data
base with the names of those who made submissions on rights of way to
the draft Wicklow Development Plan and also those who made submissions
to Comhairle na Tuaithe. You will be notified of the date later.
Failte Ireland goes
the voluntary route
There has been much media hype about the unveiling by
Failte Ireland of thirty new looped walks. While this is welcome, the
caveat made by a local farming representative, on RTE evening news on
Saturday 26 August that the land over which people will walk is private
property, permission will be required and doesn't give the freedom to
roam, puts its significance in context. In spite of the brave words by
Failte Ireland about "sustainability" which presumably means
permanent and lasting, these new walks and indeed the existing
way-marked ways are only open on a grace and favour basis as permission
can be withdrawn at any time. They exist only on a voluntary and
permissive basis with nothing guaranteed in perpetuity. As the
representative from the IFA said at one of the early meetings of
Comhairle na Tuaithe in response to a similar proposal from Failte
Ireland: "Failte Ireland owns nothing". The permanence of all
the walkways is already under threat from the IFA demand for money for
access.
We were disappointed that RTE didn't ask for comments
from us. We have made a written complaint to the Head of News.
Comments needed on
newsletter:
While we get some feedback on the newsletter we would
like more of your comments, particularly if you don't agree with
something you read or some statement in the media. As we are hoping to
start a 'letters page' it would be great if you would agree to have your
comments published.
General
Election
We believe we have broad support from the Labour
Party, the Green Party and some of the smaller parties and independents
for our aims. We intend to make this an election issue. We intend to
circulate the following to all political parties and independents prior
to the election. Keep Ireland Open are asking all political parties for
their support, if in government after the next election, for the
following:
KIO seek reasonable access to the countryside for
recreational users to bring us into line with the rest of the EU. To
achieve this will require legislative change as follows:
A law to have traditional walking
routes confirmed as public rights of way after a number of years have
elapsed without challenge by landowners;
A law to make the listing, mapping and
signposting of existing rights of way mandatory whether at local or
national level;
A law to allow freedom to roam in
areas of rough grazing (mostly in the uplands). Note- We believe that
the area involved would be approx 7% of our land area.
Comhairle na Tuaithe
(Countryside Council)
C na T National Countryside Recreation Strategy (Draft
Executive Summary) is presently under consideration by KIO. The first
objective set out in the strategy is "to achieve sustainable and
responsible recreation in the countryside". While we sincerely hope
that this will be achievable, we have our doubts as trends elsewhere
would suggest otherwise (see Failte Ireland goes the voluntary route).
KIO have been members of this body from the beginning and we were most
disconcerted to see the following in the Mountaineering Council of
Ireland membership leaflet: The MCI is the only national governing body
representing recreational users on C na T". The following
correspondence ensued:
Declan O'Keefe, (President of the MCI)
I would refer you to the penultimate paragraph of your
membership leaflet entitled "put your best foot forward" where
you refer to the MCI as "currently being the only national
governing body representing recreational users" on Comhairle na
Tuaithe. This is an absolutely outrageous statement. KIO has been a
member of C na T from its inception. In fact, only KIO can claim to
represent recreational users on C na T as the MCI represents
mountaineers and hill-walkers. KIO demand that this leaflet be withdrawn
at once.
Hi Roger,
I know that KIO has been a member of C na T from its
inception but was not aware that KIO was a national governing body . I
am copying this reply to Helen Lawless, the incoming MCI Access Officer
and Joss Lynham (our reps on C na T) as well as to Ruairi O Conchuir,
Chair of our Environmental Committee for comment and to the other
directors of MCI for information. Just so you know, I have scant access
to e-mail these days.
Regards Declan
Declan,
I would refer to your e-mail of June 12th. I have put
the matter before our committee and they have decided that our next
newsletter will refer to this correspondence. Subject to any further
reply from you they are of the opinion that the wording of the
membership leaflet is designed to give the impression that KIO are not
members of C na T. We re-iterate our demand that this leaflet be
withdrawn at once.
Roger
We still await news of the withdrawal of this leaflet.
Correspondence
If you have any comments on the newsletter or any other
aspect of our campaign or if you would like to describe your own
problems with access to the countryside send correspondence to
The Secretary, KIO, 56 Pine Valley Avenue, Rathfarnham,
Dublin 16
Links to Affiliated organisations
An Óige
Association of Irish Riding Clubs
Dingle Hillwalking Club
Federation of Local History Societies
Catholic Girl Guides of Ireland
Irish Ramblers Club
Irish Rural Link
Irish Wildlife Trust
Killarney Mountaineering Club
Scouting Ireland
or e-mail : info@keepirelandopen.org
Old Newsletters
If you would like to inform us of any problems in your area please email us at
info@keepirelandopen.org
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