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Judge Clarifies Test for Rights of Way

02 February 2006

In 2006 Mr. Justice Sean O’Leary in the High Court examined the legal test to determine whether or not a public right of way exists across land in a case concerning a dispute over the existence of a public right of way in the Glencree Valley, in Wicklow.

David Lavelle of Augustus Cullen Law, Solicitors, in Wicklow Town represented the landowner, Neil Collen, on whose lands it was alleged the public right of way existed. Here, David outlines the case, the principles involved and the test used by Mr. Justice O’Leary to arrive at his judgment that a public right of way did not, in fact, exist across Neil Collen’s land.

Few property issues cause such anger and division as disputes over rights of way in rural Ireland. These disputes can divide communities, setting neighbour against neighbour, farmer against walker, urban against rural. However, in his Judgment delivered in June, Mr. Justice Sean O’Leary in the High Court examined the legal basis for public rights of way, and clarified the legal test used – which should be noted by farmers, property owners and recreational users of the countryside.

The Case

The case involved an alleged public right of way over the lands of Neil Collen along a laneway called Lambe’s Lane which ends with a footbridge linking Mr. Collen’s land to an adjoining Coillte forestry plantation. The case was originally heard before Mr. Justice Bryan McMahon in the Circuit Court who found that a public right of way did exist over Mr. Collen’s land. Mr. Collen appealed this judgment to the High Court where Mr. Justice O’Leary reversed Judge McMahon’s judgment, finding that no public right of way existed.

Evidence

Niall Leonach, the Defendant in the case, gave evidence that he had first used the route in 1980 and had used it once a year since 1987. He stated that he was first told of Lambe’s Lane by his mother-in-law, who referred to it as a public right of way. Inhabitants of Glencree Valley gave evidence of using the route in the 1940s and 1950s to visit friends on the other side of the Valley, and to go to school and work. Evidence was given that about a dozen local people would use the lane each day, plus occasionally some hikers or strangers. However, it was unclear whether the route used by strangers was the same consistent route.

Monty Tinsley, who was secretary to the Glencree Society, had written to Neil Collen’s father, Lyal Collen, in 1980 to protest when an old footbridge was removed, demanding that it would be replaced, stating that the lane was a public right of way. This footbridge was replaced, but at a different location.

Neil Collen and other witnesses gave evidence that the route was only used by locals and rarely were strangers seen on Lambe’s Lane. However, Neil Collen made it clear that neither he nor his father had objected to local people living in the valley using the route as it crossed their land. Mr. Collen stated that he had not seen strangers on the route before the publication in 2002 of a booklet detailing walks in the Enniskerry area. Another witness also gave evidence that he had never seen strangers on the route, other than boys at weekends from a club run by the Glencree Society.

Evidence also emerged that Lyal Collen had written to the Forestry and Wildlife Service when the original old footbridge had been removed indicating that he would like the bridge to be replaced further downstream to facilitate the boys club. Mr. Collen senior had stated that, having investigated the insurance implications, his public liability insurance would cover any claims.

Legal Test

A public right of way exists where it can be shown that

  • there has been public use since time immemorial, or
  • the right of way has been created by statute, or
  • the owner of the lands has dedicated the land in question for public use and there is an acceptance of this dedication by the public.

Start and Finish:

Traditionally, a presumption that a public right of way exists also requires that the route starts in a public place and ends in a public place. There is one exception to this rule: where the destination is a place of natural beauty which required access.

Intent of the Landowner:

Dedication by a landowner to public use may be express or implied. However, in order to prove that the public right of way exists, it is necessary to prove the intent of the landowner to dedicate his lands to public use and the acceptance by the public of such dedication. Evidence of the intention of the owner may be presumed from the fact of actual public use without interruption, or that the way has been maintained and repaired by the local authority.

Judgment

In his judgment, Mr. Justice Sean O’Leary made a distinction between permission granted by a landowner to members of the public to walk on pathways across private property and the dedication of these pathways to the public at large.

In the case of Lambe’s Lane, Mr. Justice O’Leary found that various pathways converged at the old footbridge at the end of the lane as a matter of neighbourly convenience, but that this had nothing in common with a public right of way and probably did not even amount to a private right of way. Evidence of use by strangers or hikers was so small as to amount to no more than the kind of use on an unofficial basis of fields throughout the country by townspeople for Sunday picnics.

Mr. Justice O’Leary considered Lyal Collen’s letter to the Forestry and Wildlife Service as very relevant as it demonstrated that Mr. Collen senior still believed that he was the owner and occupier of the lands and that his insurance policy would cover any claims. Therefore, there was no intent on his part to dedicate the lands to public use. He also found no evidence of maintenance or repair of the route by Wicklow County Council.

Finally, Mr. Justice O’Leary found that the defendant, Niall Leonach, was attempting to establish a new legal principle that a public right of way could exist without starting or ending in a public place. Such a public right of way would effectively consist of an inaccessible island in a field of private property.

Implications

Mr. Justice O’Leary’s findings provide clarity to the legal test required to demonstrate whether or not an alleged public right of way exists. His findings equip landowners faced with alleged public rights of way across their lands to defend themselves and their property rights against such unauthorised use.

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