Public Right of Way Being Restricted

Spaulding

Hello

Just messaging to see if anyone has any thoughts on an issue that has recently arisen in my local area regarding what I would assume to be a public right of way.

Background to this issue is that in the small rural village where I live, locals have forever passed over a piece of private land (from a public road) to access a popular bathing spot. This route further extends to provide access to a large ruined castle and a holy well. The OPW have done work on the castle but I'm not entirely sure if it is in the care of the OPW or county council.

A new owner from the UK recently bought this piece of land (there is an old mill on the land which he is using as a dwelling) and has now erected a large gate preventing access from the public road (prior to this the new owner aggressively confronted people passing through on a number of occasions). I'm not sure if the new owner was badly advised or not well informed by their solicitor when purchasing, but the community has used this route since as far back as anyone can remember and even before the mill was constructed nearly 200 years ago.

Previous owners (there has been several over the last 20 years) made absolutely no issue with people passing through, swimming in the river etc). I'm not 100% sure if this was because they didn't mind people passing though or that they understood when purchasing that there was a legal right of way and there was nothing that could be done to stop people.

The local community is devasted by these developments as these are scenic tranquil spots that are used by all ages and have been forever.

Just wondering if anyone has any ideas as to whether there is legally a 'public right of way', and if so, what local residents could do to have the gate removed. Maybe its one for the county council (similar to the Lissadell House case some years back).

Any thoughts would be greatly appreciated.

Many thanks

Viscount Aggro

If its not on the property title deeds, then there is no right of way.

It needs to have been dedicated to be a public ROW by a previous landowner.

This was proven in a number test court cases.

Theres very few public rights of way in Ireland.

Spaulding

https://www.boards.ie/discussion/comment/119453880#Comment_119453880

Thanks for the response VA. Not what I was hoping to hear! I would have thought that a public right of way would arise by presumption (if the property has been used by public as a right of way for decades etc) with the encumbrance simply passing to a new owner as opposed to requiring it to be dedicated by a previous owner in the title deeds.

ittakestwo

It very complicated part of law. A public ROW has to go from a public place to another public place so presumably it goes from a public road to the beach? Which are both public. There does have to be dedication by the land owner but if the public ROW has been used since living memory then there can be a presumption of dedication. Is there any bridge even if small or footpath on the ROW or any other physical features that can be implied that dedication was given by a previous owner.

Prescription is to do with private ROW not public.

Spaulding

As a follow up, I have noticed that there is a provision contained within the Planning and Development Act 2000 (link below) which provides that, if it appears to the local authority that there is a need for a public right of way, then the local authority may make an order, by special resolution, creating such a right of way. I wonder would this be a possible route to having the right of way recognised. Has anyone seen this provision operated in practice?

https://www.irishstatutebook.ie/eli/2000/act/30/section/207/enacted/en/html#sec207

Viscount Aggro

A route being used since living memory...thats not enough.

And it would not be a presumption of dedication by a landowner.

Taking on a court case would be a costly affair.

If you are talking about a wealthy new landowner, not used to the ways of rural Ireland, you could have a stand-off on both sides.

Its all down to money and legal argument.

Unless you get the OPW to fight it.

Spaulding

https://www.boards.ie/discussion/comment/119455172#Comment_119455172

Thanks very much for the input ittakestwo. The 'right of way' goes from a public road to the river bank (swimming spot) and them further to a castle which is in the care of the OPW and a holy well (which I understand is on common ground).

I can't point to anything physical that might suggest dedication by previous owners. However, all previous owners including those that owned and operated the building as a wollen mill up to the 1960's never stopped people from passing though this right of way. For example, in hot days in the summer the river bank is full of kids and parents, there is also a swim every Christmas morning after morning mass to raise funds for local causes which usually attracts a couple of hundred people every year. I even recall Halloween bonfires on the grounds of the castle years back.

Spaulding

https://www.boards.ie/discussion/comment/119455205#Comment_119455205

Thanks for that VA. This is exactly what I'm trying to get to the bottom of i.e. can there be an inferred dedication of a public right of way through decades (even centuries) of public use. If only I could find a yes / no answer to that!!

As you suggest, I think the plan will be to try and get the OPW and the county council involved and have them take on the matter (especially the OPW seeing that its surely within their remit to continue having public access to the castle they maintain, otherwise you would wonder who is it being maintained for!!)

Furze99

You could certainly contact the local authority - some have a Rural Recreation Officer and they would be the obvious first point of contact. If not, maybe worth a chat with the planning department.

However I suspect you'll get more change from activating local county councillors and TDs and the community at large. Whatever of the legalities, to withdraw such regular public access to local people is quite unacceptable and this needs to be made very, very, very clear to the new landowner. Get the local councillor, TD on it and organise a local delegation. They may start quoting stuff like insurance and people claiming. Look up the Occupiers Liability Act 1995, a landowner has no duty of care to what are called recreational users.

This landowner needs to understand that they are welcome to the local community on the one hand but will be completely persona non grata if they don't facilitate long standing use as you describe.

A similar situation arose near here a while back, access from road to OPW owned river bank and fence put up. Council demanded removal of fence by way of enforcement notice, but every situation different.

ittakestwo

so in England and Wales long user can presume dedication. I cant find anything official for Ireland tho. These solicitors in Ireland have written this

''The intention to dedicate by the owner can be inferred or presumed from the evidence of long uninterrupted user as of right''

https://www.lynchsolicitors.ie/public-rights-of-way-explained/

Spaulding

https://www.boards.ie/discussion/comment/119455669#Comment_119455669

Thanks for that Furze99 - interesting to note that the council took up to baton in that. I think we need something similar here!

Spaulding

https://www.boards.ie/discussion/comment/119455815#Comment_119455815

Thanks for the link. Hopefully what they are saying is the case!

An interesting legislative provision from the article is

"It shall be a function of a local authority to protect the right of the public to use public rights of way in its administrative area."

Similar to Fruze99's scenario above (where the council stepped), it appears under this section 73(11) that the council are actually obliged to take action to protect public rights of way. I look forward to reminding the local council of their obligations if necessary!!

Jim_Hodge

We can surmise forever on this. Contact the council first.

Mrs OBumble

https://www.boards.ie/discussion/comment/119455669#Comment_119455669

That's fine and all. But ...

This landowner needs to understand that they are welcome to the local community on the one hand but will be completely persona non grata if they don't facilitate long standing use as you describe.

what happens if they do facilitate access, and someone using that access gets injured, and claims it was due to negligence on the part of the owner?

In this country, I would be far too worried to allow access, due to the litigious nature of the people.

https://www.boards.ie/discussion/2058258256/public-right-of-way-being-restricted

Just for your own information, the Lisasadell owners won their case, the CoCo lost, there was no ROW over the part of the estate claimed by locals and the CoCo. If memory serves me right, the papers reported that it cost the CoCo millions as they were liable for the owners legal fees, I think they were Barristers themselves.

Yip:

https://www.irishtimes.com/news/crime-and-law/courts/court-rules-in-favour-of-lissadell-owners-in-right-of-way-case-1.1590985

Furze99

https://www.boards.ie/discussion/comment/119456954#Comment_119456954

Read my post above where I anticipated the obvious: "They may start quoting stuff like insurance and people claiming. Look up the Occupiers Liability Act 1995, a landowner has no duty of care to what are called recreational users."

As far as claims go, as long as the landowner facilitates access as previous owners, i.e. the local people are uninvited visitors, then they are classified as 'recreational users' and the landowner thus not liable for claims due to injury. That is as per the Occupiers Liability Act 1995 which was passed to deal with situations like this...

Local pressure, a petition and intervention from public reps best way to deal with this.

Mickeroo

Have you looked up the spot on landirect.ie?

You can see where there are existing right of ways there I'm pretty sure, they appear in yellow like the below:

https://www.boards.ie/discussion/comment/119457450#Comment_119457450

Do such things as a private right of way exist? EG Across a state owned piece of land to back of house? Would it show up in the same way on land direct?

https://www.boards.ie/discussion/comment/119455575#Comment_119455575

When you say that the castle is "In the care of the OPW" do you mean that they have a sign on it, or that they actively 'care' for it?

If the latter, how have they gained access to it in order to maintain it?

Mickeroo

https://www.boards.ie/discussion/comment/119458093#Comment_119458093

Not sure to be honest. It could very well be the case that the rights of way you can see on land direct are only private ones between land owners.

Citizens Information website has a good section on this. Interestingly the govt recently removed the need to register a right of way and reverted to the pre 2009 situation.

Spaulding

https://www.boards.ie/discussion/comment/119458142#Comment_119458142

Thanks a mill for all the replies everyone. Very much appreciated. The issue has now been raised with the local County Council and the matter is being considered by them. Local councillors are now also involved.

I'm still going to research the area of public rights of way to see if I can get to the bottom of whether such can actually be dedicated by a landowner by inference through long term public use (as opposed to an express or written grant of such a right).

Regarding your query Ologist, the OPW have carried out works on the Castle numerous times over the last 40 years (and possible even earlier than that) and do maintain the area by cutting grass, putting up signs, painting etc. Access by the OPW would also be via this public right of way. Interestingly, and something that I forgot to mention in my opening post, is that the OPW build steps up along a steep cliff face at one side of the castle about 40 years or so ago to assist public access. The bottom of these steps can only be accessed by passing along the public right of way (such that the steps are completely redundant without using the public right of way to access them). I wonder would this suggest implied or even active dedication of a public right of way by the landowner at the time they were constructed?