Wicklow landowner wins court battle over right of way
February 9, 2012
A CO Wicklow landowner has won a High Court declaration there is no public right of way on his property as was alleged by a local walking association.
Mr Justice John MacMenamin also said there was “a strong case” for reforming the law concerning the existence of public rights of way and suggested reform should include “compulsory mediation” before any litigation.
Joseph Walker had claimed about 500 metres of his property at Annacrivey, Enniskerry, was not subject to a public right of way following a lengthy dispute with members of the Enniskerry Walkers Association (EWA).
Mr Justice MacMenamin, remarking the case “conveyed the impression” of a dispute where “matters got out of hand” and the parties were “misguided”, ruled yesterday the route was not a public right of way.
The judge said his order applied to the defendants – EWA chairman Niall Lenoach and secretary Noel Barry – but not to others as Mr Walker never sought to join others to the case.
He was not prepared to make a declaration binding “on the whole world” and had no jurisdiction to do so, the judge said. The evidence was insufficient to allow him grant an injunction against possible threatened acts and there was no evidence of any proven risk of substantial danger or repeated trespass on the land. He would not grant an order which would apply to the land itself, he said.
The litigation lasted 11 days in the High Court involving costs that could potentially ruin the parties and “had broken up long-standing friendships”, the judge noted.
While mediation was proposed “more than once”, the parties “could not or would not compromise” and the “bitterness” between them was clear, he said. Neither side had shown the degree of toleration one would normally expect and actions by both sides were “totally disproportionate” to the issues at stake.
Mr Walker had brought proceedings against Mr Lenoach, Monastery Grove, Enniskerry and Mr Barry, of Monastery, Enniskerry, both described in court as leading members of the EWA, formed to agitate for and promote the opening up of old roads and rights of way for the benefit of the public.
The action arose after Mr Walker obtained a High Court injunction preventing a walk across his lands arranged by the EWA in September 2008. The association, it was claimed, was part of a wider political movement to open up Ireland and its roads for the people.
The defendants argued there was a public road in the disputed area since 1760 known as the Old Coach Road. They claimed the right of way on land was half way between Enniskerry and Glencree, there was evidence of the road on maps from 1760 onwards and reference to the road was also made in a report prepared by Wicklow County Council.
Mr Walker argued no such road exists and claimed he was subjected to aggressive confrontations after marches were organised to his land. He also claimed his property was damaged by trespassers. While he did not blame the defendants for the damage, he believed their campaign had led to trespassers gaining access to his land, he said.
Mr Walker, a chartered accountant, told the court his father had purchased the lands in 1945 and farmed them until his death as a result of an accident in 1980.
He said he did not remember people using any part of his father’s property. People did not wander onto it that much and it would upset his father if he saw people using it for recreational use. He did allow some shooting on the land, but those using it had to seek permission first, he added.
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