Newsletter   49                                                                                                        Autumn/Winter  2013

Comment

Lissadell : bad old law brings lousy judgment

 

It 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. 

 

The logic of this woeful judgment is that it is now virtually impossible in Ireland 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. 

 

Showing 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. 

 

Even 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.

 

The 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. England , Scotland , France , the US , Australia have all concluded that the test is impossible to meet and consigned it to the dustbin of legal history.

 

Meanwhile, we in Ireland 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 for purpose.

 

If 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 Ireland , 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.

 

A 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. 

 

However, 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. 

The 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.

 

‘Dedication’ requirement an impossible hurdle

Most jurisdictions—including Britain , Germany and the US —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 was lost.

   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 Ireland , 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 about this.

 

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, Dublin . 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 beach.

 

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 Dunfanaghy.

 

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 indigenous employment.

 

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?

 

Another unfortunate visitor discovers the truth about our welcome for walkers

Keep Ireland Open received the following letter from a walker who came across on holiday from Nottingham in England and we agree with every word of it.

 

Hi


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!  

 

The incident occurred on the access road at Glenahoo valley, from the tight double bend on the road between the Connor Pass and Stradbally, to the waymarked footpath running up Glenahoo valley. However, I understand that virtually all land in this part of Ireland is private property and hence the sign is meaningless!


What you need is legislation for a Right to Roam as is found elsewhere in Europe

Ireland needs tourism not this man's rudeness.   

 

Adrian Gough

Southern trail raises hopes

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.  

The 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.

The bogus ownership claim was subsequently withdrawn although opposition in principle is still maintained by some protesters, a number of whom are demanding compensation.

This 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 longest.

 

Outrage as Horn Head loop walk bites the dust

 

                    

 

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 Dunfanaghy. 

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 brough countless visitors to an area with little in the way of indigenous employment. 

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 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 Ireland ’s busiest An Oige hostels have failed, meaning it joins about 12,000 other national monuments to which public access is currently denied.

 

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 County Wicklow , 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 Ireland ’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 monuments.

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 

 

                                

                                       

    Putting you in your place

 

So now what you always suspected has been officially acknowledged by the Government – namely that you, alone in Europe , 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 landowners.”

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 listing routes. 

Under the 2010 Planning Act, County Councils are required to list public rights-of-way in their County Development Plans.

 

Progress 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 listing.

 

They 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.

Also please send a copy to Roger Garland, 43 Butterfield Park, Rathfarnham, Dublin 14 so that we in KIO can follow them up.

Please 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.

Contact details for Councils:

Carlow: Forward Planning Dept, Athy Road , Carlow. email: countydevplan@carlowcoco.ie

Kerry: Marguerite Enright Planning Dept, Co Buildings Rathass, Tralee . email: menright@kerrycoco.ie

Cavan: Forward Planning Farnham Centre Farnham St Cavan. email:plan@cavancoco.ie

Kilkenny: Director of Services, Planning, John St Kilkenny. email:ourplan@kilkennycoco.ie

Longford: Forward Planning, Great Water St , Longford. email:cdp@longfordcoco.ie

 

Map ruling helps case

 A 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 Old Road   in County Wicklow.

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.

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

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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


An Taisce


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


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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