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
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.
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.