Newsletter 43 Spring 2011
Six million reasons to change the law
ANYBODY in doubt over the need to completely overhaul the way this State deals with access disputes need look no further than Sligo, where the marathon Lissadell estate case judgment handed down on December 20 has produced legal bills in excess of €6 million.
That Judge Bryan McMahon’s reached the excellent conclusions that four public rights-of-way exist and that the costs of the case rest with the plaintiffs is to be commended. But the fact that such a huge sum of money had to be spent to establish the public’s right is part of the reason why Ireland has fewer secured walking routes than almost anywhere else in the civilised world.
Keep Ireland Open has argued for years that what is needed is a standing commission to rule on access disputes. It could be chaired by a Senior Counsel with expertise in property law and its decisions would be indicative rather than binding. Such a commission need not deprive landowners of their constitutional right to take action in the courts. It would, however, provide a badly-needed first stop in disputes that currently only succeed in enriching the creatures of the Law Library and making local councils terrified of including walking routes in their County Development Plans lest it embroil them in the kind of terrifying and potentially ruinous legal gamble seen in the Lissadell case.
Important: AGM on April 16
KEEP Ireland Open’s Annual General Meeting takes place on Saturday April 16 at the An Oige headquarters in Mountjoy Street.
Proceedings will get under way at 11.30 but we suggest you come along at 11 and have a cuppa.
As your newsletter goes to press, we are sounding out a number of potentially very interesting keynote speakers but had better not tempt fate.
So come along. Have your say. Tell us how we can do a better job lobbying for your rights to access our mountains, shores and monuments.
Block the plan to sell off Coillte
THERE’S a real risk that Coillte will be privatised to replenish the state’s coffers. The recommendation to sell our forests is made in Professor Colm McCarthy’s Bord Snip Nua. The programme for Government talks about a merger between Coillte and Bord na Mona which probably doesn’t help matters.
In the run-up to the election we asked main political parties how they stood on the proposed sell-off. This was their response:
Fine Gael: Fine Gael will merge Coillte and Bord Na Mona into a new company to deal with renewables.
Labour: We are opposed to any proposed sell-off of Coillte.
Fianna Fail :(for what it’s worth after their trouncing at the polls): “…has no plans to sell off any part” of Coillte. However, the role and stewardship of Coillte is being reviewed by the Review Group on State Assets, chaired by Professor Colm McCarthy.
Sinn Fein: We will be opposing any attempt to sell Coillte.
The Greens: The Green Party is opposed to the sale of Coillte, along with a number of other state assets.
Since the election, Labour have indicated that they will not support the privatisation and sell-off of Coillte so this may put a brake on Fine Gael’s ambitions.
The retention in Coillte in public hands is of vital concern to all recreational users of our forests as 7pc of our land belongs to Coillte.
As you are probably aware, there was a British Government proposal to sell off state forestry in Britain. Following a huge public outcry the idea has been quickly dropped.
We need to head off this possible catastrophe . A signature campaign is being organised by the woodland league. http//www.woodlandleague.org. Please add your signature.
Meanwhile, we intend to seek reassurances from the Labour Party that they will not allow this privatisation to go ahead.
Why that judgment over Lissadell is so important
Over-the-top: Barbed wire fencing erected at Lissadell House following the judgment
THE ruling by High Court Judge Bryan McMahon that Sligo County Council was right to claim that four public rights-of-way exist across the 110-acre Lissadell House estate in Co Sligo is the most important judgment made in decades on the vexed question of the public’s right to access private land.
The decision effectively overturns an earlier inexplicable ruling by a seriously ill judge which has bedevilled access law since it was made 2005 (Collen vs Lenoach). That strange ruling by the late Justice Sean O’Leary effectively held that a public right-of-way could only exist if it had been dedicated as such by a landowner – preferably in writing. In making this assertion, Judge O’Leary flew in the face of most earlier judgments which held that a right-of-way could be created through public useage – that is by the public using a route unopposed over a period of years. Judge O’Leary, who died of a brain tumour shortly after making his ruling, also overturned a previous judgment made in the Wicklow Circuit Court by Judge Bryan McMahon which held that there was indeed a public right-of-way created by unopposed public useage in the Collen vs Lenoach case.
It is ironic that Judge Bryan McMahon, elevated to the High Court since that earlier judgment, ended up presiding over the longest, most expensive right-of-way case of modern times. Judge McMahon does not pull his punches in rejecting the notion promulgated by Judge O’Leary that a right-of-way must be granted in writing by a landowner, saying that it is time to lay aside the “legal fiction” that a landowner’s specific dedication is necessary for such a right to exist.
This has enormous implications for the working of the law and will doubtless form the cornerstone of the appeal being made to the Supreme Court by Constance Cassidy and Ed Walshe, the owners of Lissadell House.
The success or failure of the Supreme Court appeal will be watched carefully by the legislature. If the appeal fails and Judge McMahon’s decision is upheld, this will be regarded as a vindication of the law’s capacity to protect public access and will reduce the likelihood legislative change. If, however, the Supreme Court reverts to the view expressed by the late Judge O’Leary, this will underscore the near-impossibility of establishing public rights of access in the courts and will make legislative change more likely.
Either way, the judgment will have substantial knock-on effects. The 2010 Planning Act requires local councils to list and protect public rights-of-way. Ever since Judge O’Leary’s ruling, councils have had a ready-made excuse to do nothing to protect public access. They could simply say: “The High Court has ruled that there can’t be a public right-of-way unless a landowner dedicates that right.” Since only a tiny fraction of public rights-of-way or access routes have ever been clearly dedicated in writing as such, Judge O’Leary’s ruling has meant that very few councils have been willing to list rights-of-way for fear of court actions. That is why so few routes are listed in County Development Plans nationwide.
It was Sligo County Council’s decision to list the routes cross Lissadell in their 2009 County Development Plan which sparked the Lissadell action.
If, however, Judge Bryan McMahon’s ruling that rights-of-way can indeed be created by public use, then councils would be on much stronger ground in listing putative rights. Whether they actually do so will depend upon public pressure and the willingness of the Minister for the Environment to require them to apply the 2010 Planning Act provisions.
It is important to remember that Sligo County Council offered to withdraw three of the four rights-of-way across the Lissadell estate from the County Development Plan if Lissadell’s owners would cease to block one crucial short cut down to the nearby beach. The council only went ahead with the case reluctantly after this compromise offer was rejected.
Council had tried to reach a compromise
Sligo County Council offered to withdraw three of the four rights-of-way across the Lissadell estate from the County Development Plan if Lissadell’s owners would cease to block one crucial short cut down to the nearby beach. The council only went ahead with the case reluctantly after this compromise offer was rejected.
Hurry up with Supreme Court appeal, urges judge
Justice Bryan McMahon: His crucial ruling may make it easier to establish public rights-of-way
Having given his marathon 177-page judgment and awarded the estimated €6m-plus costs against the plaintiffs, Judge Bryan McMahon granted them leave to appeal to the Supreme Court.
However, he urged that the grounds of the appeal be kept as narrow as possible to speed up the process and expressed the wish that the appeal might be heard within a year rather than within the more normal two-year timespan. Meanwhile, he put a stay on paying out the enormous costs awarded to the council.
It is highly likely that Walshe and Cassidy were advised that they would win their case because of Judge O’Leary’ earlier ruling on dedication (see above). That Judge McMahon effectively rejected O’Leary’s assertions is expected to form the centrepiece of the Supreme Court appeal.
Bitter ‘old road’ case awaiting High Court judgment
ANOTHER long-running public access case was heard in the High Court in Dublin in February.
What has become known as “the Old Coach Road” case is the latest chapter in a 10-year battle to keep a long-standing walking route in the Glencree Valley open to the public. The case arose when landowner Joe Walker took out an injunction against two members of the local Enniskerry Walking Association who claim the route is a public right-of-way. The matter was given a seven-day hearing before Justice John McMenamin even though it was originally scheduled to last just four days.
Members of the Irish Ramblers, the An Oige Hillwalking Club and three other walking groups gave evidence of using the route—in some cases for up to 50 years. These were followed by seven local witnesses, some of them elderly, who said they knew the route to be an old road, and opposing map and historical experts. The ironically-named Mr Walker has become a prominent campaigner against access rights and for the Enniskerry Walking Association to win the case would provide food for thought for other landowners—especially if the substantial costs were to be awarded against him. Noel Barry and Niall Leonach of the Enniskerry Walking Association, who have taken an enormous risk in fighting the case against a very wealthy and determined adversary, are to be commended for their courage. Justice McMenamin is expected to give his judgment in late April or early May
Despite EU fines over illegal fencing, the Irish Government seems determined to turn a blind eye and even to fund more of the same
Quite unbelievably, in spite of the imminence of daily fines on Ireland for failing to comply with an EU directive to protect sensitive landscapes from development, a new rash of fencing is being erected in upland and other areas of rough grazing. The Dept of Agriculture in furtherance of the nitrates directive is forcing farmers to increase their land-holding to enable them to assist with slurry spreading. This extra land, much of leased from Coillte, is required to be fenced. And, disturbingly, grants are available. What a mess! In conjunction with Friends of the Irish Environment KIO is seeking an urgent meeting with the Minister for Agriculture Simon Coveney. We have also written to the EU Commission.
The Irish planning regulations are quite clear: planning permission must be applied for and granted before new fencing can go up on land that has been open to access by recreational users. Department officials are informally advising farmers not to bother applying for planning permission.
We are asking all individual members and affiliated groups to let us have details of any new fencing erected within the last five years.
Hundreds march against fencing of Fenit
Nasty notice on Fenit Island
THE ongoing and increasingly bitter dispute over fences erected on Fenit Island in Co Kerry continues, with tw recent protest marches attended by more than 300 people.
The fences – great metal structures more than two metres high in places – restrict access to a pathway traditionally used to walk around the island and to access Fenit Castle, a 16th Century ruin.
The battle over the fences has intensified since they were erected more than three years ago, apparently at the behest of an Ennis-based solicitor and landowner Seamus O’Sullivan. The move has divided islanders, with a small number supporting the fencing move and others calling for a return to open access.
Protest walks on February 6 and St Patrick’s day drew hundreds of supporters and the Free Fenit Committee set up to campaign over the issue are considering taking a legal action once they have ascertained whether or not O’Sullivan applied for and received the planning permission required to fence an area traditionally open for recreation.
The fences – hideous, ugly affairs – have aroused a great deal of passion and opposition and local TD Martin Ferris is among those who have objected personally to O’Sullivan. If Kerry County Council’s Planning Department cannot protect one of the most beautiful areas of the country from this kind of ugly, intrusive fencing then you would have to wonder why they are there at all.
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) email: email@example.com;
Thomás Mac Gearailt (tel: 091 593410/091 523945; mobile: 087 0521339) email: firstname.lastname@example.org;
Tom Carolan (tel: 094 9366692; mobile: 087 2196930) email: email@example.com;
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.
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 : email@example.com
Links to Affiliated organisations