COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF TERENURE-RATHFARNHAM AREA COMMITTEE (1)
Tuesday, May 06, 2008
HEADED ITEM NO. 7
PROPOSED EXTINGUISHMENT OF PUBLIC RIGHT OF WAY AT THE
RERE OF 1-14 LIMEKILN GREEN, WALKINSTOWN, DUBLIN 12.
MAP REF: RE 0620
The following report was submitted to the Terenure/Rathfarnham Area Committee Meeting (1) on 5th December, 2006.
“An application has been received from Development Department and the residents of 11 Limekiln Green and 61 Limekiln Avenue to formally extinguish the public right-of-way at the rear of 1-14 Limekiln Green, Walkinstown, due to antisocial behaviour and to affect the closure by means of incorporation into their gardens.”
Following consideration of the report, it was agreed to initiate the procedure.
The proposal to extinguish the public right-of-way was advertised in the Echo on Thursday, 21st September, 2006 and signs were erected on site in accordance with Section 73 of the Roads Act, 1993. The latest date for receipt of objections, representations and requests for an oral hearing was 6th November, 2006.
The following is a breakdown of the submissions received in response to the public advertisement/notice:-
In favour 5
Objections 16
Requests for Oral Hearing 16
The Committee granted the request for an Oral Hearing at its meeting held on5th December, 2006.
Mr. Joe O’Gorman (former Planning Inspector) was appointed to conduct the Oral Hearing in respect of the proposed extinguishment and the said Oral Hearing took place on the 14th March 2007. The following was Mr. O’Gorman’s recommendation.
“I have had regard to the location of the right of way, and its effect on the residential amenity of Limekiln Avenue and Limekiln Green. However, after having taken oral evidence at the Hearing, read the submissions handed in, the previous history, visited the site and had regard to all other matters, I conclude that the extinguishment of the public right of way would further protect the residential amenity of the residents using the laneway and would be in accordance with the proper planning and sustainable development of the area
I am of the opinion that the extinguishment of the public right of way would not interfere with or inhibit its use, which should be a restricted key access to residents whose properties immediately adjoin the laneway.”
At its meeting of the Terenure/Rathfarnham Area Committee on 4th March, 2008 it was agreed to defer a decision pending further information from Development Department and legal advice being sought from the Law Department.
Development Department have indicated that the portion of land common to the two boundaries is to be divided equally between the residents.
Law Department engaged Mr. John Doherty, Barrister at Law, to give legal opinion on the matter and his report is now to hand and the following is a copy of same for consideration.
Subject: Laneway to rear of 1-14 Limekiln Green and 53-77 Limekiln Avenue.
Querist: South Dublin County Council
Agent: County Solicitor
OPINION
Background
It would appear from the papers sent to Counsel that a laneway was created initially to the rear of numbers 1-14 Limekiln Green, a Council housing development, in order to afford access to the rear gardens of those houses to the occupants of same. Subsequently, it would appear that a private development at Limekiln Avenue took place and Querist allowed the occupants of those houses to gain access to their rear gardens by using the same laneway. It would also appear that Querist has accepted that over the years, general access to the public was allowed and, by reason of an implied dedication, a public right of way came into existence. In addition to the laneway running directly behind the houses, there were two short laneways running between 4/5 and 10/11 Limekiln Green. Following representations made by the residents of numbers 10 and 11 Limekiln Green, the right of way along this section of laneway running between the two houses was formally extinguished in the year 2000. The other short laneway (effectively giving access to the main laneway at the rear of the houses) and running between numbers 4 and 5 Limekiln Green would appear to remain a public right of way. It is interesting to note that in 1994 or thereabouts, Querist, following complaints about anti-social behaviour in the laneways between 4/5 and 10/11 Limekiln Green, arranged for the provision of gates at each end of these short laneways, and the keys to the gates were given to the householders. Whilst the right of way between numbers 10 and 11 was extinguished in 2000, the right of way between numbers 4 and 5 has not been extinguished and does not appear to be the subject matter of the current proposal.
In addition to the above, it would appear that on dates unknown to Querist, but apparently prior to 1997, gates were also erected at each end of the laneway the subject matter of the current proposal and, in addition, the section of laneway behind number 12 Limekiln Green/59 Limekiln Avenue appears to have been incorporated into the rear of these houses. Also, a small ESB sub-station box at the entrance to the laneway adjacent to number 14 Limekiln Green has a wall built around it which closes off access to the laneway at that point. These encroachments appear to have incurred certainly before 1994 as reference is made to same in a report from Mr. Philip Murphy, Senior Executive Officer, of the Housing Department to the Development Department of Querist on the 9th of June, 2004.
In 2006, the question of the extinguishment of the public right of way of the laneway in question was raised and the matter was brought before the relevant area committee meeting in September, 2006, which committee recommended the initiation of the relevant procedure under the Roads Act, 1993 to achieve this aim. Following an oral hearing in March, 2007, Mr. Joseph Gorman, the person appointed by Querist to conduct the oral hearing, produced a report wherein he concluded that “the extinguishment of the public right of way would further protect the residential amenity of the residents using the laneway and would be in accordance with the proper planning and sustainable development of the area. I am of the opinion that the extinguishment of the public right of way would not interfere with or inhibit its use, which should be a restricted key access to residents whose properties immediately adjoin the laneway.”
Following this report, the matter was again referred to the area committee meeting in October, 2007, but the committee deferred its decision pending further information and advice with regard to the following:-
“Should the Council members decide not to extinguish the public right of way, what action, if any, is open to the roads department in terms of opening up the laneway to public use, bearing in mind that two sheds have been constructed on the portion of this land for ten years.”
Opinion
It would appear to me that, initially, when this laneway came into being, it served the sole purpose of enabling the residents of the Council houses in Limekiln Green to gain access of their houses. Subsequently, it would appear that a private development took place on the other side of the laneway, known as Limekiln Avenue, and Querist, in effect, allowed general members of the public to use this laneway for the purposes of not only gaining access to the rear of the houses on both Limekiln Green and Limekiln Avenue but also to use the same as a public right of way. In essence, therefore, a public right of way by implied dedication came about and that remains the position. Until a public right of way is formally extinguished by statutory means, it remains a public right of way forever. That is the current position in relation to this laneway. A question also arises as to whether the laneway actually constitutes a public road, as defined in the Roads Act, 1993, but this may be irrelevant on the basis that even if a public road exists, if the right of way over same is extinguished, the provisions of Section 73 (5) apply and, upon the extinguishment of the right of way over such a public road, then the road authority would no longer be responsible for the maintenance of such road.
As Querist is the owner of the laneway in question, and for the purposes of these advises we must assume that a public right of way only exists over the lands and not a public road, any encroachment on Querist’s lands, save in accordance with the right of way, constitutes a trespass on those lands. Querist would have all the rights of a land owner to seek injunctive relief and damages against the trespasser but would also be bound by the provisions of the Statute of Limitations with regard to such encroachments. If a person has occupied the Council’s lands in a manner adverse to Querist’s possession of the lands for more than the statutory period, then such person would be entitled to claim a possessory title in respect of the extent of that encroachment (squatter’s title), but subject to the public right of way! It would appear to me in this case that insofar as the garages are concerned an encroachment on Querist’s land has existed for at least ten years and more likely more than 13/14 years (see the report from Mr. Philip Murphy mentioned above). If this is the case, then there is nothing that Querist, as a land owner, can do in relation to the trespass simpliciter.
Notwithstanding the above, however, Querist as a local authority has a duty under Section 73 (11) of the Roads Act, 1993 to protect the right of the public to use public rights of way within its administrative area. In addition, Sub-section (10) of Section 73 provides that a person who obstructs, impedes or otherwise interferes with a public right of way or who destroys or damages a public right of way, save as is provided for law, shall be guilty of an offence. Section 81 of the Roads Act, 1993 goes on to provide that the offence created is a summary one only and that the same may be prosecuted by a local authority. However, sub-section (4) provides that summary proceedings for an offence to which any provision of the Act relates may be instituted within twelve months from the date of the offence. In this case, the interference with the public right of way is a continuing interference, so to speak. Although the initial interference occurred certainly more than twelve months ago, every new day that dawns those persons encroaching on the right of way by means of the maintenance of the garages are committing a new offence, in my view. Therefore, if inspections were carried out on several days revealing the ongoing encroachment, summonses could be issued by Querist against those persons who may be brought before the District Court and receive fines or imprisonment in relation to each individual encroachment. That’s all every well, but that doesn’t achieve the aim of opening up the laneway. The District Court, on conviction, can only impose a fine or a prison sentence, but cannot order that the person remove the property. Nonetheless, it may be useful to threaten those persons encroaching on the laneway with criminal proceedings if they do not regularise their position and remove the garages from the encroaching laneway, should the elected members not resolve to extinguish the right of way. Such a threat might result in discussions taking place in order to regularise the position.
The creation and maintenance of an obstruction to a public right of way or a public road amounts to a public nuisance. Such an interference amounts to a criminal misdemeanour and the guilty person can only be sued in the tort of public nuisance by the Attorney-General, either acting alone on behalf of the public or, in the alternative, as a relation of a member of the public who is given locus standi by the Attorney-General’s consent to a relator action (see, for example Seaton –v- Slama (1933) 31 LGR 41; AG –v- Mayo County Council [1902] 1 IR 13; Smith –v- Wilson [1903] 2 IR 45). It would appear that this rule applies in order to prevent a multiplicity of actions and protects the wrongdoer against the risk of being punished one hundred times for the same cause and it is only where a person has suffered “particular or special” damage over and above that suffered by other members of the public may he or she institute civil proceedings for the nuisance. On this basis, it would appear to me that the only remedy open to Querist is for Querist to make complaint to the Attorney-General and request him to institute the necessary proceedings against those persons who have obstructed the right of way. Clearly, those persons who maintain structures on the right of way can be identified and if the persons who erected the small wall or the gates cannot be identified, then it would appear to me to be open to Querist itself to remove those gates, thus opening up parts of the right of way in any event. However, one would advise caution in this regard until the Attorney-General makes his views known.
Conclusion
A. A public right of way still exists over the laneway in question, even though a person or persons unknown have closed off the same by means of gates and also by the erection/maintenance of structures thereon.
B. Querist has a duty to protect the public’s right to use the public right of way. However, this Statutory requirement is not elaborated on in the Roads Act and it would appear that, other than the bringing of summary prosecutions against persons who obstruct a public right of way, no statutory means is afforded Querist to compel the removal of obstructions from the public right of way.
C. The obstructions on the public right of way amount to a public nuisance and it would appear that the only person entitled to maintain an action in relation to same (including an action seeking injunctions) is the Attorney-General or a person who is given locus standi by the Attorney-General’s consent to a relator action.
Nothing further occurs.
JOHN DOHERTY
18th January, 2008
Bord Gais, Eircom and NTL have stated that they have no objections to the proposed extinguishment.
ESB has no objections to the proposed extinguishment but they require contact be made with them in advance of any works taking place.
Public Lighting Section has no objection to the proposed extinguishment, however, it would necessitate the disconnection and removal of 2 No. Public Lighting columns and associated cabling.
Water & Drainage Sections have no objections to the proposed extinguishment.
The decision regarding the extinguishment of a public right-of-way and the granting of an oral hearing is a reserved function of the Council.
Any recommendation of the Committee will be brought to the attention of the Council.