Public Rights of Way and Planning Law - Kevin Hoy

This article originally appeared in The Law Society Gazette in August 2014 and is reproduced here with kind permission from the author Kevin Hoy.

Incentives for the use of the countryside are important for our rural economy. In Ireland, there is no common law ‘right to roam’ across land. While we may deal with certain landowner concerns, government intervention is required in respect of issues such as trespass and devaluation of property caused by public rights of way. Rights of way do exist, but the network of public rights of way in Ireland is very limited. The public may claim a right of way over land only if a particular and defined route has been dedicated by specific grant by a landowner and accepted by the public.

This type of right of way is created by grant between the landowner and the relevant local authority. Such a public right of way is then the responsibility of the county council to maintain. The Planning and Development Act 2000states that a local authority shall keep a list of public rights of way. The act requires any such public right of way recognised under the act to be registered on the planning authority register of the relevant local authority. It goes on to provide 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. So long as a public right of way has been recorded, it will continue regardless of non-use and notwithstanding any action of any landowner through whose land the public right of way passes.

There are three main walking schemes in Ireland:•The National Waymarked/Walking Programme, established by theNational Waymarked Ways Advisory Committee of the Irish Sports Council (NWWAC),•The Slí na Sláinte Scheme set up by the Irish Heart Foundation in1996, and•Recreational walks through Coillte forests.In all, 140 walking routes have been established throughout the country, varying in length from 3km to 60km. These routes are marked with a distinctive waymark and are mainly over public roads and public land. Under the NWWAC Scheme, there are currently 31 waymarked ways in existence, which account for 3,431kms, 50% on public roads and 26% through Coillte land.

The remaining 24% cross private property, national parks or other public lands. Most of these walking routes are through public lands, and therefore access may be decided by the relevant public authorities.Other paths have been procured as access routes by means of negotiations between occupiers and local communities. These paths are not public rights of way, and landowners may decide to stop access. The landowner generally enters into an agreement with the NWWAC, which then subsidies 45% of the cost of public liability insurance, with the remainder being paid by the local authority. Local management committees administer the route and have responsibility for annual maintenance.

Throughout the country, the public may access national parks and Wildlife Service lands, Coillte lands, and along canals and rivers managed by Waterways Ireland. There are six national parks covering in excess of 56,500 hectares located primarily on the Western seaboard and in Wicklow. Issues of safety or protection of habitats may restrict access. Trampled underfootA private landowner may decide to allow access. Landowners, usually farmers, are worried that if they allow access, then they will experience disruption to their property, livestock and crops. Insurance costs will rise. Lands affected by public rights of way may be worth less than lands that are completely private.

The right of the occupier of the land to exclusive use of it is protected by the tort of trespass, which is the active entering onto strangers tramping through their garden and peering in their kitchen window? Hillwalking clubs, recreational walkers, groups, and outdoor pursuits enthusiasts seek access to traverse lands freely for recreational use. Archaeologists and historians may also require access to monuments and sites on privately owned lands. Each of these parties seek confirmation that they may access land without consequences.

Over the hills and far awayThe Scandinavian countries have ‘right to roam’ provisions in their laws. In Sweden, for example, the public has a right of access that is enshrined in the constitution. Private property is protected from government expropriation except to satisfy urgent public interests. When uses of private property are diminished by government restriction, the landowner is entitled to compensation.‘Allemannsretten’ is everyone’s right or the right of common access.

This has evolved Perhaps the New Zealand model is one to use in crafting legislation that balances the concerns of owners and walkers alike‘’or remaining on another person’s land without permission.The scope of liability of occupiers of land for injury caused to those entering onto land, including trespassers, is governed by the provisions of the Occupiers’ Liability Act 1995. The act specifies the duties owed by ‘occupiers’ of land to ‘visitors’, ‘recreational users’, and ‘trespassers’. The duty of care owed by an occupier to recreational users or trespassers is in addition to the common law duty of care owed in respect of a danger existing on premises, and a duty not to injure the person or damage the property of the person intentionally, and not to act with reckless disregard for the person or the property of the person, which is considered in regard to all the circumstances of the case.

There are also practical problems, such as dogs not being kept under control, vandalism, theft, arson, litter, gates being left open, and the compromising of conservation work. Privacy is also an area that would concern landowners. Would a city dweller welcome ver many years and without any legislation to detail the respective rights and obligations. It is assumed that there is free access across another’s land, the right to stay overnight, and the right to pick berries, flowers and mushrooms provided there is no damage done to the owner’s property – ‘don’t disturb, don’t destroy’ applies.

The right of public access does not cover hunting and fishing. One may camp and have a campfire and a dog, provided that the dog is kept on a leash.In Scotland, the Land Reform (Scotland) Act 2003 introduced an outdoor access code and new responsibilities for local authorities. Walkers have a statutory right of responsible access to all land (similar to Scandinavia). When the right to roam was introduced in Scotland, landowners were not particularly concerned, as a more open-access tradition was prevalent, particularly in the Highlands. In England and Wales, the Countryside and Rights of Way Act 2000 applies, giving the public the right of free access in specified areas of open country mapped areas.

There is no general right to roam. Any land that is mountain, moor, heath, down or registered common land may be designated. There is no compensation for any landowner affected, but the act does not mean a landowner would owe any duty of care to any visitor for injury resulting from natural features. Landowners may restrict access for any reason for up to 28 days per year. The act provides for a country code to cover the arrangements for land access and established a national countryside access forum composed of representatives from landowners, local government, and recreational groups to advise.Misty mountain hopIn 2004, the Minister for the Gaeltacht and Rural Affairs set up Comhairle na Tuaithe (the Countryside Council), comprised of representatives from farming organisations, recreational users of the countryside, and State bodies with an interest in the countryside to address the issue of access to the countryside. In recent years, there has been an increase in the number of walking tours in Ireland. People have become more aware of hillwalking. The Atlantic seaboard is an attractive destination for tourists already, and other parts of the country seek to attract more visitors. However, permitted schemes may be revoked at any time.

In an attempted solution, the Access to the Countryside Bill was proposed by Ruairí Quinn in 2007, when Labour was in opposition. The bill proposes the right of access to land that is more than 150m above sea level and any open uncultivated land, including moors, heath and downs. It suggests amendments to the Occupiers’ Liability Act 1995, where people would enter land entirely at their own risk. The bill met with opposition from farm organisations, which are opposed to proposals that might lead to diminished property rights. Farmers feared increased costs in relation to their farm business, such as higher insurance premiums or threats to crops and livestock.In Ireland, the ownership of uncultivated land such as mountain, bogland and woodland is fragmented, being owned by many different owners under commonage, each of whom would have to give consent in order for access to be gained across their land.

Therefore, statutory intervention is needed if the view is that some form of a right to roam is for the public good. This should be contrasted against the nature of our constitutional rights to private property in article 40.3 and article 43 of Bunreacht na hÉireann. That’s the wayThe New Zealand Walkways Act 1990 may provide a more farmer-friendly template for us. The intent of the legislation is to provide “walking tracks over public and private land so that the people of New Zealand shall have safe unimpeded foot access to the countryside for the benefit of physical recreation as well as for the enjoyment of the outdoor environment and the natural and pastoral and historical cultural qualities of the area they pass through”. Under the act, there is no statutory power to acquire land for a walkway through either negotiation or compulsory purchase. Lands are obtained by way of an easement or a lease funded by the New Zealand parliament. The rights of the property owners are protected under the act. There is a limitation of occupier liability, and there are penalties for transgressions by walkers, including that of trespass-related offences for those who stray from official walkways onto adjoining private land. These offences include damaging a landowner’s property in any way or disturbing or endangering livestock. Interestingly, an owner can request special conditions for the use of his land in question – for example, a walkway can be closed during lambing season or during a period of higher fire risk.

The act has now resulted in a network of 125 maintained walkways, totalling about 1,200km in length. Although this figure may appear low, the walkways complement an already significant area of public land (of one-third of New Zealand) that is available for walking and hiking through its national parks.While there is provision under the Planning and Development Act 2000 for a right of way, if needed, legal reforms in the area of liability and potentially the commercial reality of a compensation package for farmers should be considered, as well as farmers having special exemptions from the general law on occupiers’ liability. In similar circumstances, where a wayleave or right of way is required for overhead power lines that would devalue a farmer’s land that would otherwise be used for a commercial purpose – for example, forestry – the ESB compensates the farmer to a significant level of the anticipated income. The Irish Sports Council’s initiative on national walking trails is welcome. It is evident from the opening of the Green Way at the old railway line from Westport to Achill and the incentive under the Wild Atlantic Way that there is a significant demand and interest from both the Irish and tourists alike for access to the countryside. However, the scope of permitted access remains dependant on the goodwill of landowners. Perhaps the New Zealand model is one to use in crafting legislation that balances the concerns of owners and walkers alike. Recreational walking tourism can contribute to the sustainable regeneration and continued protection of the rural communities, to the benefit of all of those who live, work and enjoy the Irish countryside