Lissadell 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 exists across 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, a group famously supine when it comes to the issue of public access, now admit that “the bar has been set too high” when it comes to asserting a public right of access along a route through their having used it unhindered for a long period. The mouse has roared at last.

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.

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.

Updated Dec  5th  2013