Newsletter No 29 Summer 2006
Editorial: Glencree Right of Way case is lost
This issue has an informative article on the Glencree case written by Albert Smith, (see lead article) who has long been at the frontline . We hardly need say that we commiserate with him and all the members of Enniskerry Walking Association who have worked so hard for so long on this case only to see it lost.
If nothing else, the Glencree case is instructive in one important respect. The Minister in charge of tackling the question of access, Mr O’Cuiv, is on record as saying that there are lots of rights of way over private land in Ireland, though they do not need to be marked on the maps, signposted or even recorded by the local authority concerned. Now even he, and more importantly the many walkers who thought that these nebulous ‘rights of way’ actually exist, can see plainly for themselves what this means.
What this means is that you have a right to walk these ‘rights of way’ until you are told by the landowner, or indeed anyone who acts as if he/she were the landowner, that you have no such right. Then you have the option of abandoning this ‘right of way’ or of risking many thousands of euro to fight a case, and even then you haven’t much of a chance of winning. So if nothing else we should now be able to see exactly where we stand: rights of way Irish-style are just a means of convincing walkers that they have rights, but these ‘rights” don’t amount to a row of beans. Since they aren’t even recorded anywhere the old cliché about not being worth the paper they are written on is for once appropriate: they aren’t even recorded on paper! We reiterate once again: it’s high time the law was changed.
A travesty: The Glencree judgement
KIO has been warning for years that our lack of legislation and judge-made law on rights-of-way is awful and makes it almost impossible to establish any right for reasonable public access through the courts. Well, thanks to a recent judgement of truly breathtaking stupidity, that appalling situation has just become a great deal worse. In a ruling handed down by High Court Judge Sean O’Leary on June 19th the bar for establishing a right of public access has now been set so high that it is hard to see how the vast bulk of walking routes will survive if its logic were to be applied nationwide.
The case, taken by builder Neil Collen, blocks off access through a small field at the end of a laneway called Lambe’s Lane in the Glencree Valley. This small field enabled walkers and locals to access a Coillte footbridge across the Glencree River and saved a 3-mile road walk around the head of the valley.
Circuit Court Judge Brian McMahon ruled a year ago, after a 3-day hearing, that the route was a public right of way. Collen appealed this judgement to the High Court, demanding a full re-hearing. Despite having 13 witnesses testify that the route had been used by walkers back into the mists of time, High Court Judge O’Leary (a former Fine Gael Senator) ruled that it could not be regarded as a public right-or-way because no previous owner had clearly dedicated it as such.
Since the route in question, across the Glecree Valley, was part of the Powerscourt estate until the 1950’s, 19th Century English law was used to demonstrate that only the Powerscourts (referred to in the statutes as the ‘Lords of the manor’!) would have had the right to publicly declare the route as a public right-of-way until then. Since they didn’t and since no landowner since then did either, the judge ruled that the testimony of a variety of users just does not count.
In every other jurisdiction in Europe, it is sufficient to prove use over a sustained period for a right of public access to be secured. Nor here. Now ask yourself: how many of the walking routes that you enjoy have been dedicated for public use, in writing, by landowners? Virtually none. And that is how many rights-of-way will be left unless legislation protecting access is passed by the Oireachtas as a matter of urgency.
Even Judge O’Leary seems of that view. He adds, almost wearily at the end of a remarkably one-sided judgement, that it is now open to the legislature ‘to address how to provide facilities for walkers while respecting the rights of property owners. What should be clear from this action is that the use of the concept of public rights-of-way as a mechanism for creating new or reviving old rights for walkers is unlikely to lead to a satisfactory overall solution.’ This last sentence is judge-speak for don’t come into my court expecting me to vindicate the basic civil liberty of access which exists in every other country in Europe.
The only good news is that this judgement and its wider implications are so appalling that Labour TD Ruairi Quinn has given a commitment that he will move to introduce a bill to protect walking rights in the autumn. The other good news is that the Enniskerry Walking Association, one of the few effective campaigning groups on this issue, have vowed to continue their fight to identify and protect rights-of-way despite the huge disappointment of losing a case that they had previously won. EWA chairman Niall Leonach, the defendant of the Collen case, said: ‘This ruling is so perverse that it has to become a turning point in this campaign. If its logic were to be extended, there would hardly be a footpath left in the country.” It is time to change the law.
(Albert is a leading member of the Enniskerry Walking Association and has been involved in this case since it first arose.)
The results of the Glencree case on a contested right-of-way generated a good deal of interest in the press and on TV. The Irish times had an editorial following on from the case. It called for legislation to resolve the issue of access generally and was highly critical of the farmers’ obdurate stance. In spite of the editorial’s title “Walkers ‘Right to Roam’ “there was disappointingly little about this in the editorial itself.
The other press comments ranged from an article by Mary Ellen Synon in the Daily Mail, peddling an ignorant abusive anti-walker line and exemplified by the title ‘Right to Roam? No, Keep your woolly socks off Private Land’, to a well-researched balanced article by Anne Marie Hourihan in the Sunday Tribune. KIO responded to the latter in a letter by emphasising that access was not an urban/rural dispute but a landowner/non-landowner one. There were also a number of letters in the national press, mostly on our side.
Two members of Keep Ireland Open spoke on Questions and Answers on RTE1 in June, and were the only members of a national recreation body to do so. The unsatisfactory outcome of the Enniskerry case was referred to, as was the extortionate demand by the IFA for payment for walkways: €5,000 per km and €1,000 per farm, all per annum.
The Léargas RTE1 Programme in March about access to the countryside did not feature KIO or indeed any of the usual suspects, except Dermot Somers. It concentrated on locals in the Sligo area, including the farmer whose habit is to assault walkers, in predictably unrepentant mood. Léargas is coming to the conclusion, to quote a national newspaper previewing the programme that ‘many of the disputes are not just about ownership and access. Is the bottom line all to do with money?’
In April, following an attack on KIO by Malcolm Thompson, President of the farming organization ICSA, there was an exchange of letters in the Irish Times. The ICSA chief could not credit that KIO would object to grants to farmers, but Roger Garland, the KIO chairman, pointed out once again that we had some regard for the public purse (apart from that if farmers get huge sums for access then very little access will result since the government havn’t got infinite amounts of cash). Albert Smith of KIO and the Enniskerry Walking Association took on the same Malcolm Thompson in a discussion late in April on 2FM. Mr Thompson might have learned from this interview that you have to be on very strong ground before you call your opponent a ‘fascist’, especially if one of your more prominent supporters is in the habit of assaulting people with whom he disagrees.
Walking World Ireland had this to say about the Glencree case in their editorial.
‘Seize the day! It is an old truism that the hearing ability of politicians improves markedly in the run-up to a general election, and deteriorates alarmingly when the election is over. With an election inevitable within the next year, it is now time for walkers to make themselves heard, especially in light of the disappointing ruling in the High Court on June 19th last by Mr. Justice Sean O’Leary.
In a case over a disputed right of way in Enniskerry, Co Wicklow, Judge O’Leary found in favour of the landowner, who claimed that no public right of way existed across his land. The judge commented, ‘what would be clear from this action is that the use of public rights of way as a mechanism for creating new or reviving old rights for walkers is unlikely to lead to a satisfactory overall solution’. He went on to point the finger at the legislature, in effect saying that access was an issue for lawmakers to sort out, not the courts.
Given the well-known weakness in this matter of local authorities, it is now clear that walkers and other outdoor users need to concentrate their efforts on forcing the issue to the top of the agenda with national politicians, in particular members of the two larger parties, who have shown little interest in it so far. Get on the phone or e-mail them today and raise access with them when they call to your door. If enough people do it, they’ll get the message’.
We couldn’t agree more. WWI has been 100% behind KIO in our demand for reasonable access to the countryside.
We generally have a good success rate with WWI as you may have noticed. Perhaps the Irish magazine outsider is not read by many of our readers. Here is a recent letter which appeared in their latest issue:
We note the statement by Declan O’Keefe of the MCI ‘ that within Comhairle na Tuaithe the MCI is representing outdoor enthusiasts’. While this is true, KIO is also involved with C na T. KIO representing as it does the Scout and Guide Associations, An Óige, The Irish Ramblers and many other national associations and walking clubs, has a much broader membership as well as having many times the numbers of members MCI have. Declan also says ‘a legislative solution may be needed, but it is likely to take years to achieve’. Probably true, but why not make a start now? It took the Ramblers in England seventy years to reach their goal but hey got there in the end. We intend to make this an election issue. Political parties please note.
Yours etc. KIO
Members who read news, articles or letters in the papers and see no response from KIO may wonder was a response made. We do respond to most issues requiring comment but, of course, many of our letters and press releases are not published.
Letter to Irish Times
There was an error in our letter to the Irish Times on August 23 “Walking the Wicklow Way”. In our reference to the route from near Pier Gates linking up with the road to the west side of Lough Dan we erred when we placed the route along the valley of the Cloghoge River, whereas, as those of you who know this well-used route are aware, it actually goes diagonally down to the river to the remains of the stepping stones at Ballinrush. Access is now denied to this most scenic route which also links up with a looped walk through the “deserted village”. This is quite clearly an established public right of way and is one of the many we are trying to get the County Council to list.
Action being taken by EU on Fencing
The action against Ireland on fencing in upland areas is continuing and we have supplied much information, maps and photographs to DG Environment in Brussels and they are hopeful of a satisfactory outcome.
Green Party and annual conference – Freedom to roam
The following motion was passed at the conference by a large majority: The Green Party calls for freedom to roam over rough grazing land (about 7% of the total land area) and will publish an appropriate Bill’.
This was held on April 1st. There was an attendance of about 20 and several lively discussions. Seamus Boland of Irish Rural Link, a rural but not farmer-based organisation, gave an inspiring address in which he pointed out that there were many people living in rural areas who were not in farming and hadn’t got identical interests with farmers.
Extension to Wicklow Mountains National Park
In April the National Park authorities announced that they had purchased six square kilometres of land (1,600 acres) from Garech de Brun of the Guinness family, who owns a large swathe of land of which Lough Tay is the centrepiece. The land in question is that on the right just south of Sally Gap as one comes from Dublin on the Military Road. It has a great strategic importance because it unites two large sections of the park. The cost, of €1.75 million works out at approx €1000 per acre. Over the decades the Guinness family has been more than generous in allowing so many people over their land without quibble: we are happy to acknowledge their generosity. Still it is a pity that this land had to be bought outright by the state and that the NP authorities could not have entered into a Management agreement with the owners to guarantee access.
Keep out notices
Keep out notices are now so commonplace in amenity areas in the counties along the western seaboard that they hardly register. However, a new one which has appeared on a particularly barren piece of land near Barley Cove in west Cork is worth a mention. What a turn off for a visitors!
Plans for the Autumn
We are planning a public meeting in Sept/Oct to try to involve other groups and individuals who have not yet joined KIO. Needless to say existing members are more than welcome. We have a data base with the names of those who made submissions on rights of way to the draft Wicklow Development Plan and also those who made submissions to Comhairle na Tuaithe. You will be notified of the date later.
Failte Ireland goes the voluntary route
There has been much media hype about the unveiling by Failte Ireland of thirty new looped walks. While this is welcome, the caveat made by a local farming representative, on RTE evening news on Saturday 26 August that the land over which people will walk is private property, permission will be required and doesn’t give the freedom to roam, puts its significance in context. In spite of the brave words by Failte Ireland about “sustainability” which presumably means permanent and lasting, these new walks and indeed the existing way-marked ways are only open on a grace and favour basis as permission can be withdrawn at any time. They exist only on a voluntary and permissive basis with nothing guaranteed in perpetuity. As the representative from the IFA said at one of the early meetings of Comhairle na Tuaithe in response to a similar proposal from Failte Ireland: “Failte Ireland owns nothing”. The permanence of all the walkways is already under threat from the IFA demand for money for access.
We were disappointed that RTE didn’t ask for comments from us. We have made a written complaint to the Head of News.
Comments needed on newsletter:
While we get some feedback on the newsletter we would like more of your comments, particularly if you don’t agree with something you read or some statement in the media. As we are hoping to start a ‘letters page’ it would be great if you would agree to have your comments published.
We believe we have broad support from the Labour Party, the Green Party and some of the smaller parties and independents for our aims. We intend to make this an election issue. We intend to circulate the following to all political parties and independents prior to the election. Keep Ireland Open are asking all political parties for their support, if in government after the next election, for the following:
KIO seek reasonable access to the countryside for recreational users to bring us into line with the rest of the EU. To achieve this will require legislative change as follows:
A law to have traditional walking routes confirmed as public rights of way after a number of years have elapsed without challenge by landowners;
A law to make the listing, mapping and signposting of existing rights of way mandatory whether at local or national level;
A law to allow freedom to roam in areas of rough grazing (mostly in the uplands). Note- We believe that the area involved would be approx 7% of our land area.
Comhairle na Tuaithe (Countryside Council)
C na T National Countryside Recreation Strategy (Draft Executive Summary) is presently under consideration by KIO. The first objective set out in the strategy is “to achieve sustainable and responsible recreation in the countryside”. While we sincerely hope that this will be achievable, we have our doubts as trends elsewhere would suggest otherwise (see Failte Ireland goes the voluntary route). KIO have been members of this body from the beginning and we were most disconcerted to see the following in the Mountaineering Council of Ireland membership leaflet: The MCI is the only national governing body representing recreational users on C na T”. The following correspondence ensued:
Declan O’Keefe, (President of the MCI)
I would refer you to the penultimate paragraph of your membership leaflet entitled “put your best foot forward” where you refer to the MCI as “currently being the only national governing body representing recreational users” on Comhairle na Tuaithe. This is an absolutely outrageous statement. KIO has been a member of C na T from its inception. In fact, only KIO can claim to represent recreational users on C na T as the MCI represents mountaineers and hill-walkers. KIO demand that this leaflet be withdrawn at once.
I know that KIO has been a member of C na T from its inception but was not aware that KIO was a national governing body . I am copying this reply to Helen Lawless, the incoming MCI Access Officer and Joss Lynham (our reps on C na T) as well as to Ruairi O Conchuir, Chair of our Environmental Committee for comment and to the other directors of MCI for information. Just so you know, I have scant access to e-mail these days.
I would refer to your e-mail of June 12th. I have put the matter before our committee and they have decided that our next newsletter will refer to this correspondence. Subject to any further reply from you they are of the opinion that the wording of the membership leaflet is designed to give the impression that KIO are not members of C na T. We re-iterate our demand that this leaflet be withdrawn at once.
We still await news of the withdrawal of this leaflet.
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
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