Law in relation to recreational access to private land in need of renewal

Opinion: Ancient common law rules were applied without any debate as to whether they are still fit for purpose

Thu, Nov 14, 2013, 01:00

It has been suggested that the Irish quarrel about land more often than anyone else in the common law world. As a national pastime it certainly ranks at the expensive end of the scale in terms of cost. The Lissadell case lasted 57 days in the High Court and took up a number of further days in the Supreme Court, which normally disposes of appeals in less than two hours.

In recent times our courts have managed to determine cases concerning the right to life, the right to death, the legality of national assets management and the validity of the European Stability Mechanism in a fraction of the time that it has taken them to work out who can and who can’t walk across a few grassy fields by the sea in Sligo.

As the legendary manager of Liverpool Football Club Bill Shankly might have quipped, cases about rights of way aren’t a matter of life and death; they are much more important than that.

The reason the litigation took so long is that there are few areas of law more complex than that of public and private rights over land. In one case about fishing rights the courts had to consider where Brehon law allowed you to cast your net in Mayo in the 12th century.

In another case the Supreme Court wrestled with the question of whether the Normans managed to conquer Donegal by 1189 or 1199. This is not the type of information readily available to the average landowner who sees someone walking across their garden and wants to know if they can throw them out or not. And that is before you even start wrestling with the relevant Latin terms. If you don’t know your terminus a quo from your terminus ad quem, you are not going to make it very far down your favourite right of way before you trip up over a misplaced declension.

In its judgment on Lissadell the Supreme Court not only had to wrestle with the legal Latin and the intentions of the various Gore Booth baronets, but had to consider cases involving such colourful landmarks as Stonehenge and the Giant’s Causeway.

If the ancient builders of Stonehenge had known how complex the law was going to become they might have erected a stone wall around it in order to keep the lawyers out. For all we know the passage through Newgrange does not have astrological significance but was built through the grave on legal advice so as to preserve a right of way.

Heated debate
Given how heated the contemporary debate between landowners and ramblers has become it is surprising that our courts still resolve these disputes by reference to English common law that is centuries old.

The law on recreational access to land has yet to be developed in this jurisdiction as it has in other countries such as Scotland and New Zealand, where the legislature has sought to balance the rights of landowners and walkers with regard to modern practices and legal and commercial realities. Where you see an area of law bogged down in protracted legal battles it is sometimes a sign that the law is unclear and that legislative intervention is needed.

Numerous individual battles about particular rights of way are unlikely to produce an overall solution to the problem. That can only be provided by the Oireachtas which, unlike a court, is not limited to a particular set of facts but which can legislate for the best interests of the country as a whole. Perhaps some sort of ombudsman system or form of compulsory mediation could be introduced in order to keep such disputes away from the courts save as a last resort.

There should be some way in which walkers and landowners can resolve their differences by means of a local dispute-resolution body whose rulings could only be appealed to the courts if it could be shown that they contained a serious error of law.

Of course, this could prove controversial: the importance of rights over land is so ingrained in the Irish psyche, there may be those who would argue that only the courts should be able to determine these sorts of disputes and that the Constitution does not permit any watering-down of their role.

Perhaps one missed opportunity in the Lissadell judgment is that the Supreme Court applied the ancient common law rules without any great debate as to whether they are still fit for purpose.

The judges certainly expressed the view that the common law strikes a fair balance between public and private rights. But that is of limited use if it takes weeks of litigation to work out precisely what that balance is in a particular case. On some notable previous occasions the Supreme Court has been vocal in calling for legislation to clarify an ambiguous area of law; although such calls have not always been heeded by the Oireachtas.

It would have been useful to know whether or not the judges who heard the Lissadell case were of the view that the law is sufficiently predictable and clear or whether they themselves found it difficult to apply.

Complex and uncertain
The very fact that the lengthy judgment of now-retired High Court judge Bryan McMahon, a hugely respected legal academic and lawyer, was overturned by another lengthy judgment is itself indicative of how complex and uncertain the current law is.

The judgment suggests that the Supreme Court is of a conservative disposition when it comes to protecting the rights of landowners. It will be interesting to see if this view carries over into various challenges to legislation enacted during the economic crisis which has restricted private property rights for the national good.

With the introduction of the Court of Civil Appeal it may be many years before the Supreme Court considers a right of way case again. Thus the Lissadell judgment is a landmark which lays down the law for the foreseeable future. No doubt it will be dissected and debated by lawyers in Circuit Courts up and down the land where loud disputes about land will continue to rage in Irish, English and in Latin. Mark Twain was surely thinking of Ireland when he advised people to “buy land; they’re not making it anymore”.


Paul Anthony McDermott is a barrister and a lecturer at University College Dublin.

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