Newsletter 44 Autumn/Winter 2011
Now you know how it feels, Eamon
IT is hard not to smile over the predicament in which former Minister for Rural Affairs Eamon O Cuiv now finds himself (see story, below).
For years Mr O Cuiv argued that there was no need to change the law to improve public access. All that was needed, he argued, was reason on both sides. He had nothing to say about all those cases where landowners are not reasonable. He was out of sympathy with members of the public who see walking routes vanishing before their eyes but lack the financial resources to oppose landowners bent on closure.
In September Mr O Cuiv, now in opposition, joined a protest march organised by his constituents in Cong who are angry at the closure of what they insist is a public right-of-way through part of the grounds of the Ashford Castle hotel. He now finds himself facing the High Court accused, among other things, of slander of title, that catch-all civil charge brought by landowners seeking to close down routes.
He will now be faced with the expense, worry and byzantine circumlocutions of the 17th and 18th Century English laws which make establishing a right of public access so difficult and soul-destroying. We have offered the poor man a year’s free membership of Keep Ireland Open. We’ll be here for you, Eamon. Who knows, you might be ready to speak a few home truths to the Dail about the need for reform when your ordeal ends.
Race facing shutdown over demands for cash
AN endurance race which brought hundreds of high-spending participants to Achill Island in Co Mayo faces being abandoned by the organisers who say they are fed up with demands for cash from three commonage holders who threatened to sabotage the event.
One of the organisers says they felt that they had to hand over €2,800 to three men who said they would block the event on September 10 unless they were paid.
The row broke out because the organisers of the three-year-old event have used commonage land near Keel to start and finish the race, which involves running, cycling, swimming and canoeing.
They were approached by three local men who style themselves the Custodial Missions Group to Protect the Commonage. In an effort to save the event, the worried organisers handed over €2,800. One of them, who has asked not to identified, says the experience means he will never again run the event.
A total of about 600 people actually have title to the commonage which the three members of the Custodial Missions Group claim to be protecting.
Failte Ireland have pumped more than €60,000 of public money into the Achill Roar over the last three years and it has been an outstanding success. In 2010, 750 participants took part. Each participant usually brings along two or three family members and supporters and the race helped to prolong the tourism season in a part of the country desperately in need of employment and a boost in visitor numbers. This year 650 participants registered for the race but numbers were down to 600 on the day due to bad weather.
“What I want to know is: Where were the other 597 commonage holders when these three men were demanding money on their behalf?” said one of the outraged organisers. “This kind of uncertainty and greed is the very last thing that Irish tourism and events like ours needs. Why should a few greedy short-sighted people be allowed to destroy a successful event that brings money and jobs into their area? Why are they allowed to do this?”
The answer, unfortunately, is because the law allows them to. And that will remain the case until it is changed to protect responsible public access.
Court battle looming over fenced-off Fenit Island
An ongoing battle over access to scenic Fenit Island in Co Kerry may come before the courts early in the New Year
Solicitor and landowner Seamus O’Sullivan has caused outrage in The Kingdom by erecting a series of industrial scale fences barring access to most of the island. He has also issued writs against a local farmer, Willie Parker, and the chairman of the local Fenit Action Group, Mike McCarthy, accusing them of slander of title. This is the legal charge normally brought in disputes over rights-of-way where the landowner accuses a defendant of damaging his or her title to land, and thereby its value, by claiming it is ‘burdened’ by a public right-of-way.
However, there have been indications that the legal battle over access to the island, which has been used by walkers, birdwatchers and anglers for decades, may be taken up by Kerry County Council. A number of councillors are of the view that the local authority clearly should protect a right of access to a beautiful scenic route reached by a causeway which has the historic ruins of McCarthy’s Castle at its tip.
If the council do take up the cudgels then it is likely that the actions against Mr Parker and Mr McCarthy will lie on the file until after that case.
The local action committee has organised a series of protest marches over the past year and has spent recent weeks compiling more than 40 sworn affidavits from a wide variety of people who say they have traditionally enjoyed unfettered access to the island.
Olivia tells it how it is on access
OLIVIA O’Leary has written another excellent and thought-provoking essay on the need for Irish society to rebalance individual property rights against the common good and to develop a state capable of protecting and developing walking rights.
In her ‘Drivetime’ slot on RTE Radio 1 she compares Ireland unfavourably with France, which has tens of thousands of miles of protected walking routes. If you want to hear what she had to say, we have put a link to the broadcast at the top of this website, www.keepirelandopen.org
Council spurns Sugar Loaf protection plan
Attempts to provide extra environmental protection for the area around the Sugar Loaf mountain in Wicklow have been rejected by Wicklow County Councillors.
The Sugar Loaf, one of the most popular hillwalking areas in the country, was designated a Special Amenity Area Order by former Environment Minister John Gormley. But councillors voted by 14 votes to 4 at their meeting on September 5 not to enforce this decision, which would have placed extra restrictions on building and quarrying in the area, which includes the Little Sugar Loaf and commonage around about. Bray District Councillor Ciaran O’Brien, who has been battling for years to extend SAAO protection to the Sugar Loaf, described the County Councillors’ decision as “shameful”. “This area is much more valuable as an amenity than it is for extra quarrying or building,” he said. “It is incredibly short-sighted for councillors not to see that.”
O Cuiv in dock over five-star path protest
EAMON O Cuiv, who as the Minister responsible for access issues under the previous Fianna Fail Government argued that there was no need for legal reform over the issue, has been cited as a defendant in a right-of way dispute.
The Fianna Fail now faces a claim for damages over what he claims is a right-of-way through the grounds of the five-star Ashford Castle Hotel near Cong in Co Mayo.
Mr O Cuiv joined a protest march through the estate in late September at which about 150 people voiced their objection to the closing off of a popular riverside walk. James Dwyer SC, barrister for the hotel’s owners, told the High Court on September 27 that they would be seeking damages from Mr O Cuiv. Mr Dwyer claimed that the former Minister for the Gaeltacht and Rural Affairs had blatantly ignored a High Court injunction banning the protest walk.
Mr O Cuiv later denied this claim, insisting that the injunction had been granted against two known local organisers of the protest, Hugh Lavell and Sile Gibbons, and he had no reason to believe that it applied to him or other members of the public. Mr O Cuiv also said that public money had been spent on the disputed route and there was strong grounds for believing it was a public right-of-way.
A full trial of the right-of-way issue is expected before the courts next year.
During his time in office Mr O Cuiv rejected repeated pleas from KIO to change the law so as to make it easier to establish rights-of-way. He may very soon have grounds for wishing he had done so.
Bitter Wicklow walkway actions costs to top €1m
JUDGMENT is expected early in the New Year in the longest, bitterest right-of-way case to come before the courts for many years.
What has become known variously as the Old Road or Old Coach Road case over a longstanding walking route in the scenic Glencree Valley in Co Wicklow has been before the courts for 12 full days and two half days of hearings over the past year. It is nine years since the threat of court action was made in the case and more than three years since writs were served.
Members from a number of walking groups, including the Irish Ramblers, Na Coisithe and the Holiday Fellowship walkers, gave evidence in the case, describing how they had all used what they believed to be an old roadway. Some described using it since the 1940s.
Several locals from Enniskerry and the Glencree Valley gave similar evidence.
It is more than three years since misnamed landowner Joe Walker took out High Court injunctions against two members of the local Enniskerry Walking Association in a bid to seal off a scenic old roadway which runs through woodland which he owns between Kilmolin and Curtlestown in the Glencree Valley.
Mr Walker’s legal team argued that the 14 maps showing the route as an old road or footpath were in error.
The defendants, schoolteacher Niall Lenoach and retired Dublin Bus driver Noel Barry, are respectively the chairman and secretary of the Enniskerry Walking Association, which has more than 200 members.
Costs in the case are now believed to have topped the million euros mark. That is almost certainly more than the value of the land through which the disputed section of the walk runs.
It is nine years since Joe Walker first began blocking the route by erecting fences and hiring, on occasions, paid security guards with video cameras to record people on his land. He continues to patrol the disputed route in the company of a large mastiff.
On the final day of hearings on October 21 Mr Justice John McMenamin announced that he has already walked the disputed route and intends to do so again before writing his judgment, which the defendants’ legal team expect some time early in the New Year.
Lissadell appeal still awaits Supreme Court ruling
THERE is still no indication as to how much longer it will take the Supreme Court to get around to considering the appeal made by the plaintiffs in the groundbreaking Lissadell judgment.
Plaintiffs Ed Cassidy and Constance Cassidy, both barristers, lost their marathon case against Sligo County Council almost a year ago when High Court Justice Bryan McMahon ruled that there are three public rights-of-way through the Lissadell Estate. The costs in the action, which lasted an unprecedented 58 days, have been estimated at €6.2 million. All of these were awarded against Walsh and Cassidy.
Judge McMahon said last December that he hoped the appeal would be heard by the Supreme Court within a year, even though it normally takes about two years for a case to make its way through the Supreme Court process.
The judge said that he believed that the appeal could be fast-tracked because it evolved around two points of law. The first is whether, as Judge McMahon argued, usage is sufficient to create a route. The second is whether a former occupant of the house was in a position to recognise use as granting a right-of-way as he did not actually own the property.
The Lissadell case is particularly important because it effectively overturns a bizarre judgment made six years ago by the late Justice Sean O’Leary, who ruled in Collen vs Lenoach that a right-of-way can only exist if there is evidence that a landowner dedicated it in writing to public use.
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 email@example.com);
Deirdre Kennedy (tel: 071 9141138, Fax 071 9141162;
Martin Dunn (tel: 0906 488292; email firstname.lastname@example.org);
Maria Munckhof (tel: 066 9472724 -064 41930; mobile: 087 2957780; email: email@example.com;
Con Ryan (tel: 062 33360; mobile 087 0556465; email: firstname.lastname@example.org;
James O’Mahoney (tel: 023 34035; mobiles 0870556465 and 0870556465); email: email@example.com;
Pat Mellon (tel: 0404 46977; mobile 087 7888188) email: firstname.lastname@example.org;
Thomás Mac Gearailt (tel: 091 593410/091 523945; mobile: 087 0521339) email: email@example.com;
Tom Carolan (tel: 094 9366692; mobile: 087 2196930) email: firstname.lastname@example.org;
Eimear McCarthy (tel: 094 9366692; mobile: 086 0495041); email: email@example.com
Published by Keep Ireland Open. KIO is an environmental organisation dedicated to preserving public access to our mountains, lakes, seashore and countryside.
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 : firstname.lastname@example.org
Links to Affiliated organisations