Council could face legal €7m bill after Lissadell ruling

Sligo County Council could face a legal costs bill of several million euro after the owners of the Lissadell estate won a unanimous Supreme Court ruling that there are no public rights of way across four avenues through the historic estate.

The court did find a public right of way across part of a coastal route through the estate taking in the beach at Lissadell but quashed a High Court declaration granting a right to park cars on Lissadell lands adjoining that section.

The judgment of the five-judge court marks the final stage in the long and bitter legal battle between the council and barristers Constance Cassidy SC and Edward Walsh SC, who bought the estate and 410 acres for €4 million in 2003 and spent €9.5 million restoring it.

Lissadell was the former home of the Gore-Booth family, of whom Constance Gore-Booth, later Countess Markievicz, became the first woman in the world to hold a seat in cabinet after her appointment as minister for labour by the first Dáil Éireann.

County development plan
When the new owners learned in 2004 that public rights of way were being asserted over routes in the estate, they locked the gates on the main avenue, resulting in a campaign to ensure public rights of way at Lissadell in which, the Supreme Court noted, Cllr Joe Leonard was "particularly active". After the council in December 2008 resolved to amend the county development plan to provide for preservation of public rights of way over four routes, the owners took High Court proceedings insisting there were no public rights of way.

After a 58-day hearing, Mr Justice Bryan McMahon dismissed the owners’ claims but they appealed to the Supreme Court in a hearing that ran for 10 days.

Mr Justice Nial Fennelly, Mr Justice Liam McKechnie and Mr Justice John MacMenamin prepared the Supreme Court's 116-page judgment, delivered yesterday, with which Chief Justice Mrs Justice Susan Denham and Mr Justice John Murray agreed.

The matter was adjourned to allow the sides consider the judgment. Costs and other issues will be decided later. The costs of the High Court case were estimated at more than €6 million and overall costs at more than €7 million.

The case concerned four routes through the estate – A-B (from Crushmore through Coillte lands); B-C (the Main Avenue); B-D (Forge Avenue); and B-E (Farm Avenue).

The Supreme Court ruled that the common law of Ireland required, before a public right of way can be established, that it is necessary to prove the owners of the lands dedicated the way to the public and the public accepted that dedication.

What was required was proof of use of the way by the public as of right for such a period of time and of such frequency and intensity as to lead to an inference, on considering all the circumstances, that the landowners dedicated the way to public use.

The High Court found public use of the routes through the estate dated from at least the early 1950s and ruled dedication occurred between 1857-1861.

The Supreme Court ruled the High Court judge incorrectly stated the law when he found evidence of public use was itself “right-creating” and led to an “almost irresistible inference” of dedication. That statement failed to distinguish between the acquisition of a right of way by prescription, as in the case of a private right of way, and dedication, it said.

The Supreme Court overturned the High Court finding that Sir Robert Gore-Booth and his son Newcomen had between 1857 and 1861 dedicated public rights of way over routes B-C (Main Avenue) and B-D (Forge Avenue). Because the public use upon which that finding was based began in the 1950s, within living memory, it could not logically be a basis for a finding of dedication by reference to such public use almost a century earlier, the court said.

Having found no evidence the third route B-E (Farm Avenue) existed before it appeared on the 1855 Ordnance Survey map, the court ruled the High Court erred in finding that route was dedicated for public use between 1857 and1861.

Dealing with the finding a public right of way existed historically along a coastal route from Carney to Johnsport, the court noted part of that route (from Crushmore to Bunbrenóige Bridge) passes over lands owned by Coillte since 1968. No declaration could be made regarding the Coillte part of the route as Coillte was not involved in the case, it ruled.

Car park
The Supreme Court agreed with the High Court there was a public right of way over that section of the coastal route passing over the Lissadell lands from Bunbrenóige Bridge (used mainly for access to the sea) but found there was no public right to park cars on the Lissadell lands adjoining that part because that would entail the creation of a public car park on private lands.