: bad old law brings lousy judgment
is often said by judges that the courts deliver the law rather than
justice and that is certainly the case in the Supreme Court's ruling
in the Lissadell case, which was handed down on November 11.
logic of this woeful judgment is that it is now virtually impossible
to prove that a route is a public right-of-way providing a means to
cross private land unless you have a written dedication from a
previous or current landowner deeming it to be so.
that the public used a route over the years, which many lawyers and
citizens had until now held to be sufficient to prove a right to
public access, simply will not work, the Supreme Court has ruled.
Mountaineering Ireland (MI), a group that has been embarrassingly
supine when it comes to the issue of public access, now admit that
this latest Supreme Court judgment means that "the bar has been
set too high" when it comes to asserting a right of access along
a route traditionally used unhindered by the public for a long period.
The MI mouse has roared at last. Albeit timorously.
law delivered by the Supreme Court in the Lissadell judgment is not
only bad law. It is very old, bad law. The test of dedication by a
landowner has been abandoned in just about every other country where
it used to apply - simply because proving it is too onerous.
have all concluded that the test is impossible to meet and consigned
it to the dustbin of legal history.
continue to apply the same tired old English law that the English
themselves reformed in 1932, 1948 and 2000 to such a degree that it is
scarcely recognisable from the creaking statutes which we inherited
from them in 1922 and that our witless politicians still regard as fit
the impossibly high test of dedication applied in the Lissadell
judgment were to be asserted nationally, there is scarcely a public
right-of-way left in
, other than the public highways. What this absurdity underscores is
the desperate need for legislation in this area. At the very least,
the kind of legislation proposed in the Dail by Labour TD Robert Dowds
in June, which would make it possible to assert public rights-of-way
by showing useage.
much better solution would be to adopt the kind of open access laws
which work so well in the Scandinavian countries and in Scotland,
which protect the public's right to cross private land almost anywhere
other than private gardens and environmentally protected areas -
subject to their conforming to a strict code of conduct.
in the meantime as an interim measure, the Government should retrieve
Robert Dowds' Bill from the Environmental Committee, where Environment
Minister had consigned it for a slow death by drowning, dust it down
and push it through the Dail as quickly as possible.
Lissadell judgment spells the end for those who argue that Irish law
on access is workable. What is needed now is swift and radical reform.
requirement an impossible hurdle
—have long since dropped the requirement for dedication of a public
right-of-way. Yet that is the very test upon which the Lissadell case
At its simplest, the requirement for dedication means that, for
a right-of-way to exist, the person making the claim has to show that
a current or previous landowner publicly declared their intention to
turn a route over to public use and that this was accepted by the
public. Almost every other jurisdiction accepts that unopposed use of
a route shows that a landowner accepted public use. In
, thanks to the Lissadell ruling, the bar has now been set much
higher. Impossibly higher.
Unless the law is changed, most of the routes long accepted as
public rights-of-way have been placed in danger because of this
ruling. We can expect more fences, closures of routes and belligerent
behaviour from landowners. You should tell your TD what you think
Taxpayers’ cash used to fund
beach blockade developer
A recent protest over closure of beach
A bizarre case in Donegal has led to a
developer in receipt of public money to help with the completion of a
complex of holiday homes blocking off access to a public beach in an
apparent attempt to privatise it.
The beach at Carrigart is at the centre of a dispute
between a local action committee and T&G
Property Developers, of Lucan,
. The developers have erected a two-metre high steel gate blocking access
to the beach via an old roadway which locals insist used to be the
main road between Carrigart and Creeslough, two villages in the
idyllic Aghadachor area in Co Donegal.
The development consists of 27
self-catering holiday homes, a beach activity centre, sports hall, bar
and restaurant, tennis courts, games areas, children’s playground,
pitch and putt course and beach promenade. A letter submitted to
Donegal County Council as part of the planning application for the
development specifically refers to the developer’s intention to
charge for admission to the beach once the centre is completed.
The €15m cost of building the complex
includes a €1.3m grant from Failte Ireland, who really should know
better than to bankroll a development by a developer who made it plain
in their planning application that they intended to privatise a public
The row has been covered in a special
report for RTE Radio One’s ‘Today With Sean O’Rourke’ current
affairs programme, a story in the Irish
Times and widespread coverage in the Donegal press.
Locals in the Carrigart area have formed
an action committee to fight for restored public access to the beach
and you can follow their progress on https://www.facebook.com/pages/Save-Aughadahor-Beach/651618501535314?ref=ts&fref=ts
If you want to know why Keep Ireland
Open has been arguing for years that the permissive approach being
used to set up looped walks does not work, consider the recent closure
of the beautiful and dramatic McSwynne’s Gun Loop at Horn Head, near
A great deal of public money has
gone into developing and publicising this walk, which involved
persuading 15 commonage holders to permit a path over rough commonage.
It has brought countless visitors to an area with little in the way of
Now one of the commonage-holders
has decided to pull out of the scheme. Because of the way it has been
organised, this means that the whole route must be closed down as the
agreement states that there must be unanimity amongst landowners or
commonage-holders in order to keep a route open.
That is what happens when routes
are set up without a permanent right to walk.
So now it’s over to our
legislators. Could somebody please wake them up?
unfortunate visitor discovers the truth about our welcome for walkers
Open received the following letter from a walker who came across on
holiday from Nottingham in
and we agree with every word of it.
I've been walking in the Dingle
peninsula, as a visitor, for over 20 years. Yesterday, I was challenged
by a surly, rude man for walking down a lane that had previously been
a forestry access but now has a sign Private Property high on a
telegraph pole. The gate was open and I've walked this route often
before. It joins a public road to a public path and is about 400m
long, cutting out a 2km diversion. It spoilt our day!
incident occurred on the access road at Glenahoo valley, from the
tight double bend on the road between the
and Stradbally, to the waymarked footpath running up Glenahoo valley.
However, I understand that virtually all land in this part of
is private property and hence the sign is meaningless!
What you need is legislation for a Right to Roam as is found elsewhere
needs tourism not this man's rudeness.
trail raises hopes
of pushing the Southern Trail Cycling and Walking Greenway over the
Limerick border into County Kerry have risen after land-grabbing
farmers on the Kerry side of the route dropped a vexatious court case
in which they were claiming they owned the track, which is the
property of CIE.
long-suffering Southern Trails group have already developed the 40 km
of the County Limerick section of the old Limerick-Tralee railway and
were understandably miffed to have progress delayed throughout 2013 on
extending the Greenway westwards into Co Kerry by the obstructive
tactics of some adjoining landowners. These tactics included claims of
ownership of the route, which is still owned by CIE. The would-be
landgrabbers placed a blockade on the route but then tried to hide
when photographers tried to photograph them at the scene.
bogus ownership claim was subsequently withdrawn although opposition
in principle is still maintained by some protesters, a number of whom
are demanding compensation.
vociferous minority is countered by substantial public support in the
Listowel area and, as 2013 draws to a close, the prospect seems
brighter for extending the Greenway, which would then become Ireland's
Horn Head loop walk bites the dust
want to know why Keep Ireland Open has been arguing for years that the
permissive approach being used to set up looped walks does not work,
consider the recent closure of the beautiful and dramatic McSwynne's
Gun Loop at Horn Head, near Dunfanaghy.
great deal of public money has gone into developing and publicising
this walk, which involved persuading 15 commonage holders to permit a
path over rough commonage. It has brough countless visitors to an area
with little in the way of indigenous employment.
one of the commonage-holders has decided to pull out of the scheme.
Because of the way it has been organised this means that the whole
route must be closed down as the agreement states that there must be
unanimity amongst alnd-owners or commonage-holders in order to keep a
route open. This is what happens when routes are set up without a
permanent right to walk. So now it's over to our legislators. Could
somebody please wake them up?
Cromlech joins 12,000 other
historic monuments which have been placed out of bounds
Attempts by KIO to protect public access
to a Bronze Age cromlech close to one of
’s busiest An Oige hostels have failed, meaning it joins about
12,000 other national monuments to which public access is currently
An Bord Pleanala declined to order
Dargan and Jean Fitzgerald, a couple who erected an ugly
chain-link fence, blocking public access to the monument close
to their second home near Knockree Hostel in
, to restore access to the ancient slab grave site. The fence, which
was erected without the necessary planning permission, has now been
removed and replaced with a hedge.
The Bord also declined to order the
Fitzgeralds to demolish a house which the couple built – even though
it is substantially larger than that for which they received planning
permission. Keep Ireland Open had appealed Wicklow County Council’s
granting of retention for the trophy home in an effort to induce the
Fitzgeralds to restore access.
Since Wicklow County Council and the
Office of Public Works have both declined to make any attempt to
protect the 5,000-year-old monument from having long-standing public
access to it, cut off, Bord Pleanala had been the last
hope. The protection of access to the monument, which was
always open until the Fitzgeralds completed the house a couple of
years ago, now falls to local people, a number of whom have expressed
determination to continue to visit the site.
This latest setback comes as a National
Monuments Bill, which was to protect access to
’s ancient heritage, continues to languish in limbo in the Dail,
where it has been kicking around the chamber for several years.
Heritage Minister Jimmy Deenihan said earlier this year that the Bill
would be progressed “later in the year”. As December slips by
nothing, predictably, has happened.
Mr Deenihan admitted in the Dail in
March last year that there are approximately 120,000 heritage sites
around Ireland, that most of them are on private land and that at any
one time, at least 10pc – that’s 12,000 – are closed to public
access. This despite the fact that one of the most frequently-cited
reasons that foreign visitors give for their visiting Ireland are,
wait for it, access to the countryside and our wealth of ancient
So much for The Gathering. Just don’t
think you can gather in the great outdoors or at any of the 12,000
closed off national monuments!
Government book spells it out :
Only landowners have rights
you in your place
So now what you always suspected has
been officially acknowledged by the Government – namely that you,
, have no rights of access to private land.
Enclosed with the current hard copy of
the KIO newsletter is a copy of a booklet issued by Comhairle na
Tuaithe, the countryside commission. This Government-fundled leaflet
is designed to set out the current position of both landowners and
leisure users and it states on Page 4: “Participants in recreation
activities should be aware there is no legal right of access to the
Irish countryside. Those who enter onto land owned by others for the
purpose of recreation do so entirely to the good will and tolerance of
If you are not happy with that
situation, we suggest that you make your views known to your local TD
and other political representatives. If you know others who regard
this as an unacceptable state of affairs, we suggest that you invite
then to join Keep Ireland Open, the only organisation campaigning for
change in this area.
Councils dragging their feet over
Under the 2010
Planning Act, County Councils are required to list public
rights-of-way in their County Development Plans.
on this is very slow as many councils are terrified of listing
disputed routes that might land them in expensive legal battles –
just look at what happened to Sligo County Councils over Lissadell. However, a number of Co Council have commenced
are looking for information on walking paths traditionally used by the
public. If you have any suggested routes you should send a photocopy
of an ordinance survey map with the route highlighted.
please send a copy to Roger Garland, 43
Butterfield Park, Rathfarnham,
14 so that we in KIO can follow them up.
note that the listings are being done on a county-by county-basis
rather than nationally, but you don't have to be resident in the
county to make suggestions.
details for Councils:
Carlow: Forward Planning Dept,
, Carlow. email: firstname.lastname@example.org
Enright Planning Dept, Co Buildings Rathass,
. email: email@example.com
Cavan: Forward Planning
Farnham Centre Farnham St
of Services, Planning, John St Kilkenny. email:firstname.lastname@example.org
Great Water St
, Longford. email:email@example.com
Map ruling helps case
ruling by the Supreme Court means that a controversial
recently-discovered map which may have a strong bearing on the case is
to be admitted as new evidence in the long-running court battle over a
walking route known as the
The Powerscourt Estate map appears to show the disputed
route as a roadway and may helpt to overturn a 2012 judgment that
there is no right-of-way along the disputed route in the Glemcree
Valley. The plaintiff, Joseph Walker, opposed the introduction of new
evidence for the appeal.
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.