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
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.