Newsletter   56                                                                                         Winter/Spring   2017

Tweak to law would have avoided cut knee judgment

 Teresa Wall: admitted she had not looked where she was going

Keep Ireland Open welcomes the decision to overturn the Circuit Court judgment which awarded    €40,000 to a hillwalker who fell and cut her knee while traversing a boardwalk on the Wicklow Way.

But we do so in the knowledge that the whole case could and should have been avoided if the government had made a simple tweak to Ireland’s public liability legislation.

 Farming organisations and a number of landowners had made it plain that they regarded the original judgment handed down last April as yet another reason to restrict public access.  The original judgment made in favour of Teresa Wall from Swords, Co Dublin, was narrow in its focus and held that man-made structures, such as the boardwalk, incurred a higher level of duty of care than the landscape itself.

 Under the 1995 Occupiers’ Liability Act, users cannot claim damages against landowners unless they can show that a landowner has behaved in a way which he or she knew was likely to cause injury. The Circuit Court judgment had held that a higher duty of care applied to man-made structures. Until the initial Wall judgment, no walker or other leisure user had successfully sued a landowner since the 1995 Act was passed.

 If the Wall judgment had been let stand, then there is a good chance that the National Parks and Wildlife Service would have felt it necessary to close down some  or even all of the boardwallks around the country. It would also have called stiles and bridges on private and State land into question if they were held to a higher level of duty of care

In the High Court appeal Judge  Michael White dismissed Ms Wall’s claim on the grounds that she had admitted not been paying close attention to where she was walking at the time of her fall, which had led to her receiving seven stitches to a knee injury.

When considering the “mechanism of her fall”, the judge found a “high degree of negligence” on Ms Wall’s part due to her not looking at the surface of the boardwalk when she fell.  

The really silly thing is that the two expensive court cases which Ms Wall’s cut knee has spawned could easily have been avoided if the government had simply closed the loophole relating to man-made structures.

For that is exactly what the UK government did when they spotted the danger of liability from man-made structures back in 1999. They then promptly amended their Occupiers’ Liability Act to exclude liability when walkers injured themselves on man-made structures.

 Our own government could have taken a leaf from the UK’s book if they had not, as usual, been fast asleep at the wheel when it comes to introducing legislation in relation to public access.

Needless to say, we have pointed this out to the government and recommended that they legislate accordingly. Let’s hope they do.

Your AGM is on May 13 — be there  

The Keep Ireland Open AGM will be held at the An Oige headquarters in 61 Mountjoy Street, Dublin 7 on Saturday, May 13. Coffee will be served from 11am and the meeting will begin at 11.30. We hope to have a speaker, yet to be confirmed, who will take us through the long battle to retain access to Fenit Island in Kerry.  Free secure parking parking is available at the rear of the building. You just need to check in with reception.

Ross has his head in the sand over greenway failures

  €9m  in public funds is earmarked for greenways but there is still no permanent right of public access to them

 Despite the expenditure of almost €3.5m, the government still cannot give a date for the opening of the South Kerry between Glenbeigh and Renard.

Tourism and Transport Minister Shane Ross (Ind) told Labour TD Alan Kelly that the long-promised route along an old railway line has run into difficulties with landowners. He also cited what he described as design and funding problems.

Asked in the Dail in January about the progress of the South Kerry and other greenways, Mr Ross promised new policies on how these routes are to be created but admitted that he still could not give a completion date of the long-delayed South Kerry route.

The project, as with a number other proposed greenways, has been beset by objections from landowners, many of whom have illegally squatted on disused railway lines over the  years and now are demanding compensation for allowing routes to go ahead. They have consistently enjoyed the backing of the main farming organisations for their outrageous demands. 

Shane Ross: Failing to grasp nettle on squatters

                                                     Even if he has the will to confront the farming organisations (which we doubt), Mr Ross will find his hands tied by his partners in government, Fine Gael, who have long operated a policy of never introducing laws which upset the farming organisations.

This is likely to lead to the continuing ridiculous position whereby the State is persuaded that it should pay out taxpayers’ money in compensation in order for the public to continue to cycle along routes which belong, by rights, to Iarnrod Eireann. Only clear public ownership of the routes can ensure that they remain open.

 The much-vaunted Newport to Mulranny Greenway in Co Mayo shows the dangers of ‘by agreement’ deals because it has been closed three times in recent years when individual landowners have withdrawn their consent and blocked the route over disputes with the Department of Agriculture and Mayo Co Council.  This despite several million euros of public money having been spent on the route.

Mr Ross needs to completely rethink the basis upon which public money is poured into greenways. Money should only be spent where the public has a permanent right of access and no deals should be done which leave that right in doubt.

For we are now talking about substantial proposed expenditure. In addition to the €3.5m proposed for the South Kerry greenway, Mr Ross told the Dail that Galway Co Council is to receive 2m for the proposed Moycullen to Galway route, Tipperary almost €2m for Clonmel to Carrick-on-Suir, Longford €513,000 for Abbeyshrule to Ballymahon and Meath Co Council almost €2m for the Cloncurry to the Blackwater aquaduct, which is part of the proposed Dublin to Galway greenway. Longford Co Council is to receive €513,000 for the Abbeyshrule to Ballymahon route and Westmeath almost €500,000 for the Garrycastle two Whitegates route.  Meanwhile, more than €840,000 to Kildare for the Spin Bridge to Chambers Bridge greenway.

In other words, Mr Ross is proposing to spend more than €9m of public money on routes to which the public will not have a permanent protected right of access. Talk about a hostage to fortune!

This is madness and not one cent more should be spent until the law has secured an absolute unfettered right of public access to every publicly-funded greenway. 

Opposition heats up to 19 million Euro plan for site at Hellfire Club

Ruins of the Hellfire Club: Ambitious plans for interpretative centre

Keep Ireland Open is concerned at the scale of ambitious plans to develop a visitor/interpretation centre at the Hellfire Club site on Montpellier Hill in the Dublin Mountains.

No planning application has been submitted at the time your newsletter went to press and it seems that the plans, which have a projected cost of €19m, are still very much in their infancy. However, they have the provisional backing of South Dublin County Council (SDCC), Coillte andFáilte Ireland.

In addition to the proposed centre, there are outline plans for car-parks, coach parks, a restaurant/cafe, at least two retail units, and the requisite toilet facilities, lift, plant room, storage etc. A tree top sky-walk, a zip-wire arrangement, is planned from the Hellfire Club to Massy’s Wood at the end of the mountain.

KIO accepts that the Hellfire Club/Massy’s Wood area offers great opportunities to introduce walkers and other recreational users to a magnificent resource and would welcome a proportionate information centre in the car parking area. However, that is a very different proposition to what is being proposed.

We are being kept up to date by Fine Gael Councillor Paula Donavan. A local groups has been set up to oppose the plans. See www.savethehellfire.com or www.facebook.com/SavetheHellfireClub for further details.

Greens prepare Bill to change access law

 David Healy: Drawing up Bill

Keep Ireland Open has been working with the Green Party to prepare a Bill which would extend the right to public access in Ireland.

The Bill would be based on the Scottish Land Reform Act which opened up almost all of Scotland to public access in the year 2000.

David Healy, a barrister and Green Party activist, is preparing draft legislation, which Green Party leader Eamon Ryan will endeavour to bring to the floor of the house.

The proposed law would make it legal for members of the public to access all land unless there was a specific reason to exclude them, such as environmental concerns. This right would not extend into people’s gardens or the curtilage (the area immediately around) their homes.

Such legislation has worked extremely well in Scotland, opening up the countryside to natives and visitors and virtually doing away with disputes over whether there is or is not a right of access. It has also proved boon to the Scottish economy, with officials claiming that free access is worth more than £2 billion a year (approx  €2.3 billion).

Significantly, most of this money goes to economically depressed rural areas.

Luggala: Let’s buy the land and let house sale go ahead

Luggala and Lough Tay: Provides access to spectacular walks

Concern over the planned sale of the Luggala house and estate by Garech de Bruin has sparked justifiable fears that a number of famously beautiful walks could be lost to the public. This has sparked calls from a number of TDs for the State to step in and buy it as an extension to the Wicklow Mountains National Park.

But with a price tag of €28m, it is unlikely that the government will take that course of action. Anybody listening to the relevant Minister Michael Ring in the Dail when he was questioned about the sale would be left in no doubt that he was not interested in putting a large hole in his department’s budget.

So how about Mr Ring suggesting to Garech de Bruin that he might like to sell most of the 5,000-acre estate to the State but sell the house and, say, 100 acres around it, including the all-important shoreline in front of the house, separately?

Most of the land that would be of interest to the National Park, and which would enable the most dramatic and popular walks down to Lough Dan and Lough Tay as well as to long-established walks over Fancy Mountain and Knocknaclohogue, is either bog or low quality agricultural land. Given the good will of Mr de Bruin, who has always been generous with regard to public access, this land could be purchased for a nominal sum, leaving him free to make a fortune by selling the house and area around it separately.

As KIO chairman Roger Garland wrote in the Irish Times letters page on February 10: “Now to the value of the 4,900 acres. The Minister said in his speech to the Dáil last week that the State had acquired a similar acreage of mountain land at the Featherbed last year for €800,000. Allowing for a higher value on the Luggala land, as it includes some lowland grazing perhaps it could be acquired for something around €1.5 million, which would represent excellent value to keep this unique amenity open to the public.”

A better solution would, of course, be to legislate to protect public access to private land but, given that political cowardice and short-sightedness makes that unlikely at the moment, a separate sale of most of the land and the house would at least protect some of the most popular and beautiful walks in the East of the country.

We’re in a truthful minority, Minister

Comhairle Na Tuaithe, Ireland’s toothless Countryside Commission, recently presented an expensive consultant’s report into its ‘work’ to Michael Ring, Minister for Regional Development.

   The report, a complete whitewash, tries to convince the Minister that CnaT is doing great work in bringing together the various stakeholders in the countryside. KIO has attended every meeting of CnaT over the last 13 years and the truth is much bleaker. Sadly, CnaT is a toothless and useless quango which will not even discuss the need to legislate so as to provide citizens of and visitors to Ireland with the kind of rights of access which exist in every other European country. It is a meek, powerless body that cannot show one significant achievement for its dozen or more years of embarrassing existence.

KIO has refused to allow its name to be appended to the report by consultant Humphrey Murphy and has instead provided the Minister with a minority report, which you can read on our website.  

Keep an eye out for illegal fencing    

We would like to remind members to please continue to send us instances where a planning application is made for fencing or where fencing is actually taking place.

Fences in areas which were traditionally open for access require planning permission and far too much open land has been lost in recent years through totally inappropriate and unapproved fencing. Remember, you are KIO’s eyes and ears!

Recreation Officers : a who’s who

Rural Recreation Officers have been appointed to look after walkways around the country and to iron out problems where they can, given the lack of legislative backing for their work. The following is the latest list with their names first, the Leader Programme employing them, the walks they are responsible for and their contact details.

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