COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF SOUTH DUBLIN COUNTY COUNCIL
Monday, February 14, 2011
QUESTION NO.7
QUESTION: Councillor W. Lavelle
To ask the Manager to report on the rights and responsibilities of local authorities with respect to the creation of new rights-of-ways in the context of the recent High Court ruling on the Lissadell case?
REPLY:
There is a distinction in Irish law between public and private rights of way. A private right of way is the right to enter on to private lands for the purposes of gaining access to or exiting from another piece of land. A public right of way is a persons right of passage along a path or road. Historically, public roads and public rights of way were the same thing and came about in the same way. Members will be familiar with the “taking in charge” of a road by the Local Authority. Taking in Charge means that Local Authority formally decide to become responsible for the maintenance and upkeep of a roadway to a minimum standard suitable for cars and traffic. On the foundation of the State, roads became regulated and registers were kept of all roads taken in charge from or about 1925 onwards. Unfortunately, the same did not apply for public rights of way until very recently. The maintenance of a register of public rights of way is now required under the Planning Act, as amended, for all public rights of way recognised or created under the Act. Unfortunately, a lot of information was lost between 1925 and 2000 and the process of registering public rights of way is still in its infancy. The statutory provisions were further amended by the recent 2010 Planning Act.
Public rights of way were often creatures of common law or arose from court decisions. In general, it can be said that any road or pathway that was and is still used by the public since before time immemorial, that is before 1189, is a public way. Otherwise, public rights of way were created by an event called a Dedication by a freehold landowner to use of his property by the public coupled with an Acceptance by the public of that dedication. A dedication is an absolute statement of permission that the landowner is no longer to be involved. The kernel therefore of any dispute of a public right of way is proving that the essential dedication and acceptance took place. The public or any agency acting in the public interest must prove their case and the onus of proof is theirs. In the absence of direct knowledge as to what actually happened (experience from recent high profile cases is testament that the matter is not at all straight forward nor simplistic) a court in reaching a decision is required to look at all aspects of the case, both historical and current, in reaching its decision. The recent High Court ruling on the Lissadell case is testament to this.
In addition, no discussion on rights of way would be complete without addressing the rights of landowners and walkers. The Occupiers Liability Act 1995 includes the definition of “recreational user” as a category of users of privately owned land. Under this act, a recreational user is a person present on the land of a private citizen, without payment of a charge (other than a reasonable charge possibly for parking facilities) for the purposes of engaging in recreational activities. In such circumstance, the owner of the land is obliged only not to intentionally harm the recreational user.
Permissive Paths
“The Wicklow Way” is an established route that has been in the Dun Laoghaire Rathdown and Wicklow development plans for years. All the landowners, public and private, have given permission for the route across their property, and all the private landowners have been indemnified against any claim by a user of the Wicklow Way. It is not a right of way, it is a "permissive path" and landowners may withdraw permission after giving reasonable notice. The phrasing of some development plans listing rights of way and access routes together may lead people to believe that an "access route" confers some right of usage by the public. The legal opinion, received by the promoters of the route is clear - no Right of Way can exist unless designated by the owner. Hence "permissive paths" and "access routes" cannot be converted into rights of way by the simple decision of a local authority, unless of course it is prepared to buy the land and thus become the “owner.”
The Dublin Mountains Way recently established in South Dublin from Tallaght, and linking with the Wicklow Way in Dun Laoghaire Rathdown has been developed as a "permissive path" with all landowners, public and private, needing to give permission for the stretch across their property, and all the private landowners have been indemnified against any claim by a user of the way.