Walkers in Co Wicklow have won an important test case allowing them access to a disputed right of way in the Glencree Valley, against the wishes of the landowner.
Judge Bryan McMahon yesterday granted Niall Lenoach and any member of public the right to use a track known as Lambe's Lane, saying there had been "ample evidence" during last month's hearing to show the route was a traditional right of way.
In doing so, the judge refused an injunction sought by Neil Collen preventing walkers entering his land, which lies between Glencree and Enniskerry. He also ordered Mr Collen to pay 70 per cent of Mr Lenoach's costs for the three-day hearing.
His decision was warmly welcomed by the Enniskerry Walking Association, of which Mr Lenoach is chairman. It called on Wicklow County Council to include Lambe's Lane and other routes in the county development plan.
"The failure by the council to protect rights of way means that almost all of them are in grave danger of being lost forever unless individuals and groups like ourselves take the drastic action to become involved in expensive, time-consuming legal action to protect the public interest."
The association urged the Government to introduce legislation requiring county councils to map and protect rights of way.
Keep Ireland Open, which campaigns for walkers' access to private land, said the decision was "a major precedent" for other disputed routes. It also criticised the county council for its lack of involvement in the issue.
The decision disappointed Mr Collen, who said he would have to read the detailed judgment before deciding on an appeal.
In his judgment, delivered at Naas Circuit Court, Judge McMahon described as "irrelevant" evidence given by witnesses for Mr Collen that the tranquillity of the area would be disturbed and security issues would arise if the track were declared a right of way. The court was not concerned with these matters, he said, though they could be addressed and managed once the issue had been determined.
While Mr Collen accepted that local people had traditionally used Lambe's Lane, he denied a public right of way existed. But some local people gave evidence of seeing hikers on the route back in the 1950s.
Judge McMahon, who walked the route himself during last month's hearings, said he accepted the evidence given by both sides as accurate and truthful for the most part. There was not a huge conflict between the evidence given by both sides, with Mr Collen's evidence mostly relating to a period after 1967.
None of Mr Collen's witnesses could give evidence on the "position on the ground" before this time.
"Looking at the totality of the oral evidence, I have come to the conclusion that there is ample evidence that there was a defined right of way as claimed by Mr Lenoach and used not only by children going to school, locals and workers from the area, but also by considerable numbers of the public not from the area, such as hikers, recreational walkers and the like, by the late 1940s at the very latest."
The judge also said the Ordnance Survey maps from 1835 and 1910 showed a defined track corresponding to the claimed right of way. While the maps could not prove this was a right of way, they suggested it was used by substantial numbers of people. The presence of a footbridge across the Glencree River suggested people accessed the route from the Glencree side. The evidence "overwhelmingly established" that the then landowners dedicated the way to the public long before the 1940s.
Mr Collen's father, Lyal, bought the land in 1967 and built a house on the route of the right of way around 1980. When he diverted the track and removed the footbridge a local charity complained and Mr Collen agreed to its rebuilding downstream.
Judge McMahon said this correspondence showed a "reputable body" was asserting a public right of way over the land. In his response, Mr (Lyal) Collen did not deny the existence of such a claim.
