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SOUTH DUBLIN COUNTY COUNCIL

MEETING OF SOUTH DUBLIN COUNTY COUNCIL

Monday, March 11, 2013

QUESTION NO. 24

QUESTION: Councillor G. O'Connell

To request that the Manager provide a comprehensive report, to include the opinion of the Law Agent, on the situation of  “right of way” legislation as it pertains to laneways that have been provided in former times to enable householders access the rear gardens of their properties and therefore are not “thoroughfares” for the general public and will not be less “rights of way” for the intended purpose if there is a controlled entrance to the laneway (i.e. a gate) over which all relevant and interested parties (i.e. all householders with access to the laneway as well as the Local Authority) have control?

REPLY:

Laneways in housing developments which have been declared to be public roads in accordance with legal requirements and in charge of the council are for use by the public at large.

The current legislation pertaining to the declaration of public roads is Section 11 of the Roads Act 1993. One of the requirements the council must comply with where it proposes to declare a road to be a public road is

“satisfy itself that the road is of general public utility”  - Section 11(1)(b).

For the purposes of clarification, “road” includes any street, lane, footpath, square, court, alley or passage as per the interpretation in section 2 of the Roads Act 1993. As members are aware the making of an order under subsection 1 of Section 11 of the Roads Act 1993 declaring a road to be a public road is a reserved function.

Housing developments on the other hand that are constructed as private developments are different to the above. These developments are usually maintained by a management company and the roads and services are not offered to the council for taking –in-charge purposes. The roads in such housing developments are not declared to be public roads and as such are private. Restriction of access to and use of any laneway in these housing developments would be a matter for the relevant management company and not the council. 

It is understood that this question refers to public laneways in the general Palmerston area. In the context of the extinguishment of the public right of way over such a laneway local residents have raised the following issues:-

a)      can they effect the closure by means of a gate

b)      they don’t want to be responsible for the future maintenance of the laneway, this should remain the responsibility of the council.

The laneways in question, while being public and in charge of the council, they are not in the council’s ownership.  The power to extinguish a public right of way is a reserved function under section 73 of the Roads Act 1993. To enable the residents to effect the closure of a laneway by means of a gate or otherwise, the consent of the owner would be required in the first instance. The issue of whether planning permission would be required for the erection of the gate would also need to be clarified. With regard to future maintenance of the laneway it should be noted that subsection (5) of Section 73 of the Roads Act 1993 states

“Notwithstanding any other enactment, where a public right of way over a public road or a part thereof is extinguished under this section, the road authority shall no longer be responsible for the maintenance of such road or part thereof with effect from the date on which the extinguishment of the public right of way comes into effect in accordance with subsection (4)."

It is clear from the above that the council would no longer be responsible for the maintenance of a laneway when the public right of way over it is extinguished.