Newsletter 45 Spring 2012
Another fine mess
Justice John McMenamin understates the case: We desperately need updated and clearer laws on public access in Ireland.
As the judge says (see story, right), we have never updated the ancient English laws inherited in 1922 when the State was founded. England and Wales have moved on to clarify and streamline the laws by which they create public rights-of-way. Scotland has been even more sensible, following the Scandinavian model which declares almost all of the countryside open to those who follow a strict code of conduct.
Meanwhile, Ireland fails totally to protect the basic rights of citizens to enjoy the countryside. At the same time Failte Ireland lures walking tourists here under totally false pretences, pretending that they can enjoy the kind of rights and protections assured in other modern democracies but exposing them to danger and disappointments reported continually to KIO by those who have found routes over private land blocked.
Access remains a political hot potato. The Greens failed while in office to grasp the nettle. Labour, despite making the right noises from time to time, does nothing. Fine Gael, despite having a leader who says he likes to walk, pretends that there is no problem. Political cowardice rules, regardless of common sense, basic decency and even the recommendations of well-intentioned judges. It’s time our pusillinamous politicians woke up to the damage their cowardice is causing.
Judgment likely to be appealed
THE long-awaited High Court judgment in the Old Road case has thrown an already confused situation over rights-of-way in Ireland into chaos.
In a complex ruling, Justice John McMenamin says there is “a strong case” for reform of the law. He says that while the law in England and Wales has been changed on a number of occasions so as to make it easier to create rights-of-way through public use, this has never happened here.
“In England this test has been recognised in statutes as allowing a court to form inferences that a public right-of-way exists. But our law and English law differ. Law reform is best done by legislation, not litigation. As other judges have pointed out, there is a strong case for reforming the law in this area,” he says in his 79-page judgment.
In his judgment, Justice McMenamin made a declaration that no public right-of-way exists along an old green road, variously known as the Old Road and the Old Coach Road, which runs through the property of businessman Joe Walker in the Glencree Valley.
However, he went on to say that this ruling only applies to the two members of a local walking group against whom Mr Walker had taken his High Court Action.
The judge specifically states that the ruling does not apply to the public at large or even to other people connected with the case.
At the time this newsletter went to press, the judge had not yet made a decision regarding costs. The bill for the 11-day High Court hearing plus total charges by solicitors and barristers for each side could be up to a million euro.
The two defendants are members of the local Enniskerry Walking Association who have been campaigning for years to have the Old Road declared a public right-of-way. Noel Barry, a pensioner, is the EWA’s secretary. Niall Lenoach, a school teacher, is its Chairman.
Dr Michael Forde SC, who represented Mr Lenoach and Mr Barry, is adamant that Mr Walker will have to go back to the courts if he wants to bar other members of the public from crossing his land. “This judgment does not bar other members of the Enniskerry Walking Association or other walking groups or members of the public at large from walking along this route. If Mr Walker wants to bar them, he will have to start all over again,” he said after the judgment.
The Judge rejected Mr Walker’s plea for injunctions barring the public from crossing the disputed route. He also ruled that since the action had only been taken against the two defendants and Mr Walker had failed to acquire the Attorney General’s fiat to ensure that the public interest was represented, that no judgment could be made against the general public.
At the time of going to press, preparations for an appeal to the Supreme Court were being made by Mr Lenoach and Mr Barry’s legal team.
‘What kind of law is it that forces a man to risk financial ruin for simply stating what he believes to be true—namely that people should continue to have the right to walk along a route he knows to have been in use for generations?’
Noel Barry, Secretary of the Enniskerry Walking Association and one of the defendants in the Old Road case
The route has been the subject of controversy since Mr Walker began barring walkers in 2002. He has repeatedly put fences across the roadway, erected notices warning of prosecution and turned many walkers back. He has, at times, hired security guards to block access. and repeatedly alleged that he had been attacked, abused and threatened by walkers. However, he withdrew allegations of assault and a suit for damages when the current case arrived in court.
Mr Barry said after the ‘What kind of law is it that forces a man to risk financial ruin for judgment: simply stating what he believes to be true—namely that people should continue to have the right to walk along a route he knows to have been in use for generations?’
My father believed this to be a right-of-way. So do most of the people that I know who have lived in the Glencree Valley. The law has to change so that the State protects the public’s interest in these matters rather than leaving it to members of the public to take a stand against wealthy individuals.”
Have your say at the AGM
Your AGM takes place on Saturday, April 14 at the An Oige headquarters, 61 Mountjoy Street, Dublin 7.
The meeting will include an discussion of where KIO should place its focus following the recent judgment in the Old Road case (see above). Coffee will be served from 11am and the meeting will begin at 11.30. Free off-street parking and a complementary lunch available.
AG and Minister to examine judgment
Environment Minister Phil Hogan has indicated that the Attorney General will consider the implications of the recent ruling in the Old Road case.
In response to a Dail question, Mr Hogan said his own department and the AG will examine the ruling “when it becomes available”.
Deal to re-open historic graveyard falls through
Helen Carroll of the Yewtree Graveyard Restoration Committee: “We cant even honour our dead”
Hopes of a compromise deal which would reopen the historic Yewtree graveyard in Co Wicklow have been dashed.
Peter Doyle, the farmer who owns land which people have traditionally crossed to reach the centuries-old cemetery, has blockaded the gate into the field, apparently in a dispute over who should pay his solicitor.
Wicklow County Council had threatened to take Mr Doyle to court over his blocking of access to the graveyard. However, in November the Council announced that they had done a deal with him whereby a new path would be put in place around the boundary of the field.
A notice was erected at the entrance to the field in Balisland, near Shillelagh, announcing that the graveyard would reopen on December 12. But when members of the local graveyard action committee tried to gain access to decorate the graves just before Christmas they found the way blocked and they were told by Mr Doyle that he was in dispute with the council over his legal fees.
Yewtree is one of Wicklow’s most historic graveyards and it has been declared a National Monument. Archaelogists believed that people have been buried there since pre-Christian times, probably as early as the 7th Century. The last burial was in 1972 but a number of locals still have the right to a grave there if they should choose. Both Catholics and Protestants have been buried there since the 16th Century.
A number of those killed in the 1798 rebellion are interred there, along with their English foe. There is an ancient plot for unbaptised babies attached to the main cemetery and great efforts have been made by the local Yewtree Restoration Committee to tidy up the grounds, clean off gravestones and erect a monument up to unnamed children which was paid for by public subscription.
Helen Carroll, one of the organisers of the restoration group, says: “I cannot believe that Wicklow County Council can simply sit by and allow a landowner to block access to family graves and a National Monument. Whatever deal they thought they had cobbled together has fallen apart but the council seem unwilling to act.” Helen is one of a large number of local families who have relations buried at Yewtree. Two of here grandparents lie there.
Wicklow County Council solicitor Ian Munnelly, who announced the ‘done deal’ in November, did not return a call from Keep Ireland Open.
Public expenditure may be key in fight for Fenit
One of the notices that greet visitors to Fenit
KERRY County Council have engaged a Senior Counsel to advise as to how risky it would be to take a case against a solicitor and landowner who continues to block access to Fenit Island.
A key consideration for the legal team examining the issue is the expenditure of substantial sums of money by the council to put in a roadway partly around the island. In the 2010 Lissadell judgment, the expenditure of public funds was held to indicate that there was a recognition and acceptance of a public right to be on land. That High Court judgment is still before the Supreme Court more than 15 months after it was referred there.
Seamus O’Sullivan, the landowner who has had substantial fences erected to keep people off the island, is being opposed by the Fenit Action Committee, a group of locals who have gathered up dozens of affidavits from people who enjoyed access to the island until he fenced it several years ago.
They include anglers, birdwatchers, hillwalkers and people from Tralee, who came out for generations on the old Tralee-Fenit rail line.
The problem is that if a central plank of Judge John McMenamin’s recent ruling in the Old Road case is let stand – namely that Irish law does not enable a right-of-way to be created by public use because we have never updated our ancient English statutes in the way they have repeatedly in England and Wales, then showing unopposed use may not be enough.
Consequently, local councils are understandably reluctant to take court action to defend public rights-of-way because the law is so unclear and taking an action is potentially financially ruinous. The Lissadell case, for example, ran up costs estimated at €6.2 million. Provisional estimates of the total costs in the recent Old Road case (see Pages 1 and 2) put the total costs at between half a million and a million euro.
The result of the continued legal uncertainty is that a requirement in the 2010 Planning Act for local authorities to list public rights-of-way has become meaningless. Ever-cautious councils are saving themselves a lot of work – and potentially a lot of money in legal fees – by listing none at all.
Wanted: the truth about those nasty illegal fences
In order to persuade the EU to act against the erection of illegal, unsightly and largely unnecessary fencing in Ireland, we need evidence of any new fences erected or being erected in hitherto open areas. Please note that replacement fencing, even if the previous fences were completely inoperative, are not new and therefore don’t count. Please send details, and photos if possible, to Michael Murphy Pinewoods Westport Co Mayo. e.mail:email@example.com or tel: 09825068.
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