Newsletter   46                                                                    Summer/Autumn  2012

COMMENT

 

Mean-spirited truth slips out

KIO has long been convinced that the farming organisations are being dishonest when they object to better public access on the grounds that their members fear being sued by walkers injured on their land.

The fact that not one single walker has successfully sued a landowner since the 1995 Occupiers’ Liability Act became law made that claim ridiculous.

And guess what has just emerged: The Government is considering a scheme to indemnify landowners against injury claims and—wait for it— two of the three farming organisations are not sure if their members want that (see Page 2).

Why? Because they prefer to trot out that old canard about fearing legal action when the truth is that they don’t really want more citizens and visitors (who pay 90pc of their farm incomes) enjoying our countryside.

The Government should press ahead with the indemnity scheme, followed by bold new legislation expanding the public’s right of access. Now the farmer reps have shown their real colours, let’s stop pussyfooting around.

 

TD plans new law on access

                                                                                                                                Robert Dowds T.D.

A Labour backbench TD is to introduce a Private Member’s Bill designed to make it easier for local councils to declare public access routes over private land.

Robert Dowds, TD for Dublin Mid-West, intends to use the recently created Friday afternoon rule whereby backbenchers can introduce legislation.

The Bill will be drafted in the coming months and will focus on enabling local councils to declare routes where they are needed to reach seashores, lakes, mountains, rivers and national monuments. It will also lay down a mechanism by which councils which fail to respond to public pressure for access can be called to account.

Mr Dowds says his Bill will pick up the baton from Education Minister Ruairi Quinn who, in 2007, proposed detailed access legislation. That Bill was never proceeded with.

Mr Dowds says he has been moved to produce his Bill by the chivvying of both Mr Quinn and of his own wife, Katherine Dowds. "Katherine has lived in the UK and in Sweden for years and she has been pointing out on a regular basis how pathetic public access to all aspects of the countryside is in Ireland by comparison to other countries."

It will be interesting to see how much Dail support Mr Dowd’s proposed Bill will receive. Fine Gael – traditionally wedded to the IFA - are unlikely to back it. Fianna Fail is also scared of the farmers and Sinn Fein are split, with one wing supporting Martin Ferris’s plea for better access legislation and another wing, led by Pearse Doherty, taking an ultra-cautious approach.

 

State insurance plan flushes out the miserable truth

Two main farming organisations admit that many of their members will not want to take up indemnity offer in case it encourages more walkers to enjoy the countryside.

 

For years KIO has argued that the farming organisations have been completely disingenuous when they insisted that a major reason for their opposing more liberal public access laws was that they feared their members might be sued by walkers who could injure themselves on farmers’ lands.

Now two out of three of the main farming organisations have provided the proof that our suspicions were completely correct.

The truth is that there has been no real fear of claims since the watershed Occupiers’ Liability Act was passed in 1995. This Act, to all practical intent, absolved landowners of liability to walkers unless the former deliberately set out to cause injury. Not one claim for damages by a leisure user (walker, cyclist, horserider, paraglider etc) has succeeded in the courts since the Occupier’s Liability Bill became law. Nor is there any likelihood that any such claim would prevail.

And what, you might ask, is the reason for this resistance to the government providing indemnity for land accessed by the public—the very thing that the IFA (Irish Farmers Association) and ICMSA (Irish Creamery and Milk Suppliers Association) claimed was needed? Well, the IFA and the ICMSA have informed the Government that some of their members are worried that the availability of indemnity might encourage more people out into the countryside.

So there you have it. The farming organisations don’t want the taxpayers of Ireland and Europe, who last year stumped up 85pc of Irish farm incomes, to pass over their land.

Now some of them are preparing to take a stand against this most intelligent and necessary Government measure to encourage more use of the countryside – along with the broader rural development that would surely bring.

The claim by the farming organisations that their members feared being sued was bogus – a fig-leaf to cover a resistance to reasonable access legislation.

The truth is that the farming organisations banged on about their ‘fear’ of being sued in the mistaken belief that holding out against legislative change would eventually force an exasperated State to pay them yet more scarce (and scarcer) State funds for access.

We in KIO welcome the Government’s indemnity proposal with open arms. We hope it comes to pass after the IFA and the ICMSA have learned to become a part of, rather than semi-detached from, the rest of society.

The words "gift horse" and "mouth" come readily to mind.

 

Fearful councils slow to list rights-of-way

Our intensive lobbying of the previous Government resulted in a section in the Planning Amendment Act (2010) providing for the mandatory listing and mapping of public rights of way by county councils. It is now a requirement that all county development plans must include these lists in their County Plans.

The first fruits of this breakthrough have just emerged. Meath County Council’s draft County Plan has listed 24 rights of way.

While landowners have a right of appeal, we are hoping that at least some of the routes listed will be adopted as rights of way.

The Wexford Draft Plan provides for listing before the expiry of the Plan in six years time. We have pointed out to the council that a list must appear in the final version of the Plan as it is quite clear that this leisurely approach is a breach of the Act.

Another positive in Wexford is a summary of the present law on the requirements for the identification of rights of ways and a set of procedures to be followed, including involving the public.

However, even if we eventually finish up with a few rights of ways here and there we are not hopeful of a comprehensive list due to the present law based on a number of conflicting court cases. (See reference to the Supreme Court Appeal in the EWA case on following page).

 

Illegal homeowner blocks off access to historic cromlech

The battle by locals in Enniskerry to preserve access to a 5,000-year-old cromlech continues.

The monument at Glaskenny, close to the An Oige Hostel at Knockree in the Glencree Valley, had always been accessible from the nearby roadside via a narrow path. But in 2011 Dargan and Jean Fitzgerald, demolished an old cottage called Marietta and built a new house close to the cromlech. They also erected, without planning permission, a 1.8metre chain link fence along the roadside, blocking access to the monument, which is on the outer Western boundary of their garden.

The house which the couple built was also substantially larger, higher and more visually intrusive than the one which they had received permission to build from Wicklow County Council. This did not go unnoticed and they have been seeking retention for the illegal structure from the council.

Several members of the local Enniskerry Walking Association have objected to the fence, for which the Fitzgeralds did not have planning permission, and the section of chainlink leading to the cromlech has now disappeared. In a new submission, the couple have offered to replace the fence with a hedge but have not agreed to restore public access to the monument.

Meanwhile, Wicklow County Council, who are noted for being conspicuously useless when it comes to protecting public access, merely asked the Fitzgeralds to supply a letter from a solicitor stating that he or she did not believe there was a public right-of-way over the land.

Given that most courts have held that a public right of way must traverse a route from one public place to another and that the locals were merely claiming a right of access to a monument rather than a public right-of-way, the council would seem to be acting with their customary dilatoriness.

The monument has been open to public access for 5,000 years but, given its past form, don’t be surprised if the council fails to enforce the law over what is both a blatantly illegal building and blocked public access to an important part of history.

 

Glaskenny cromlech – has been open for 5,000 years

 

Monuments Bill long-fingered – again

The Government is again long-fingering the badly-needed National Monuments Bill which was to regularise access to our National Monuments. Word from our spies in the Dail indicates that it unlikely to be introduced in the Oireachtas until, at the earliest, the end of next year. According to information gleaned from the answer given to a parliamentary question to Minister Jimmy Deenihan, it seems that we have no fewer than 120,000 National Monuments of which only 727 are in state ownership. The rest are privately owned with  public access provided to only a small number of these.

Two key appeals to Supreme Court may

be heard in tandem

The appeal of the High Court ruling made earlier this year in the case of the Old Coach Road walking route in Co Wicklow is proceeding to the Supreme Court.

The judgment handed down in February by Justice John McMenamin is regarded as untenable by KIO and by Michael Forde, the Senior Counsel representing the defendants in the case.

Mr Forde, who is representing defendants Noel Barry and Niall Lenoach, is expected to request that the Supreme Court hear the appeal at the same time as another appeal over rights-of-way on Lissadell estate in County Sligo, which is to be heard in January after a two-year wait.

The plea to hear the two appeals in tandem arises out of the fact that they raise similar issues for the court to consider. It is believed that the legal bill for the Lissadell case will top €9m by the end of the Supreme Court hearing. It was before the High Court for 58 days.

The bill in the Old Coach Road case, which was before the High Court for 11 days in total, is believed to be around €1million. Both bills are clear proof of how unfit for purpose the law on access is in Ireland.

 

A wake-up call for your walking club

 

While we are pleased to have the support of many clubs there are others out there who prefer to sit it out and let KIO do the heavy lifting. We recently contacted a number of clubs to seek their support. The excuses given for non-involvement varied but the main ones were:

Affiliation or any connection with KIO could damage their relationship with landowners; also:

No problems with access: When we countered this by pointing out access problems in their area their response was: "We get permission for our club to go through his/her property or sure we take an alternative route." Significantly, when we asked what would happen if no alternative route was available or pointed out that other routes had also been closed there was an embarrassed silence.

To hell with people coming down from Dublin or our foreign visitors. That’s their problem. People who take this view are not concerned with the benefits to their local economy from opening up the countryside. Access, they insist, is not their problem.

When we succeed, and we will succeed no matter how long it takes, in opening up the countryside for walkers these selfish groups will reap the benefits. This is really sickening.

We need many more clubs and individuals to join to strengthen our hand when dealing with Government.

We also ask you to try to recruit more members. Those of you in walking clubs should lobby your club to join us too.

Membership application forms are available to download from our website: www.keepirelandopen.org

 

                                                                      

 

Barbed response: Supreme Court appeal over access to the Lissadell estate in Co Sligo is set to be heard in January following a two-year wait.

 

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:

Co Laois:

Ann Lannigan (tel: 057 8661900 or 086 8447338; email rrolaois@gmail.com);

Co Sligo:

Deirdre Kennedy (tel: 071 9141138, Fax 071 9141162;

Co Roscommon:

Martin Dunn (tel: 0906 488292; email martin@southrosleader.ie);

South Kerry:

Maria Munckhof (tel: 066 9472724 -064 41930; mobile: 087 2957780; email: mfarmer@skdp.net;

South Tipperary:

Con Ryan (tel: 062 33360; mobile 087 0556465; email: con@gleann.net;

West Cork:

James O’Mahoney (tel: 023 34035; mobiles 0870556465 and 0870556465); email: jamessheepshead@eircom.net;

Co Wicklow:

Pat Mellon (tel: 0404 46977; mobile 087 7888188) email: pmellon@wicklowleader.ie;

Co Galway:

Thomás Mac Gearailt (tel: 091 593410/091 523945; mobile: 087 0521339) email: slichonamara@hotmail.com;

Co Mayo:

Tom Carolan (tel: 094 9366692; mobile: 087 2196930) email: tcarolan@southmayo.com;

Co Clare:

Eimear McCarthy (tel: 094 9366692; mobile: 086 0495041); email: emccarthy@cldc.ie

 

Published by Keep Ireland Open. KIO is an environmental organisation dedicated to preserving public access to our mountains, lakes, seashore and countryside.

 

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 

or e-mail : info@keepirelandopen.org

Links to Affiliated organisations

 

An Óige


Catholic Girl Guides of Ireland


Countrywide Hillwalkers Association


Friends of the Irish environment


Friends of the Murrough


Irish Rural Link


Killarney Mountaineering Club


Scouting Ireland


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If you would like to inform us of any problems in your area please email us at info@keepirelandopen.org

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