The High Court ruled that a disputed route across Joseph Walker’s land at Annacrivey, County Wicklow, was not a public right of way, granting him a declaration against two Enniskerry Walking Association officers.
Mr Justice John MacMenamin delivered the judgment on 8 February 2012, following an 11-day hearing. The defendants, Niall Leonach and Noel Barry, had argued that public use and historical maps supported a right of way. The court found that the evidence fell significantly short of establishing dedication of the route to public use.
The judge said the case could be decided only between the parties. The Attorney General had no objection to the public-right-of-way issue being pleaded and litigated as part of the defence, but had not consented to a ruling binding the public at large. Wicklow County Council, which was notified, did not take part. The declaration therefore does not determine the route’s status against the whole world.
The court considered evidence from walkers who described using the route over many years, as well as historical maps and expert testimony. It found no evidence of public expenditure or maintenance on the route. The judge concluded that occasional use during the ownership of Walker’s father, Norman, was consistent with tolerance of shortcuts, rather than acquiescence in a public claim. From 2002 onward, the court found, Walker’s objections and efforts to block access were clear.
The judgment also rejected the defendants’ reliance on two documents said to come from a 1990 Wicklow County Council survey. Their source, authorship and context had not been proved. The court said they would have carried little evidential weight even if admitted.
Walker had sought damages for trespass and wrongful interference with his land, as well as other relief. The court made no award for trespass, finding any incidents too limited and remote. The claims for wrongful interference and slander of title had been withdrawn. It refused an injunction, finding no sufficient evidence of a current substantial risk of danger or repeated trespass. An allegation that Leonach assaulted Walker in 2005 was not pursued, and the judge made no finding against him on it.
The court said it would hear counsel on costs. Its declaration was that the route was not a public right of way.