The High Court dismissed a counterclaim seeking recognition of a public right-of-way over a path from point C to the site of a former footbridge at point D, across the Glencree River area. It did not make a final order on the plaintiff’s claim or decide costs; it said it would hear submissions on both matters.
The judgment, delivered by O’Leary J at Wicklow Courthouse on 19 June 2006, concerned a route on property owned by the plaintiff, Peter Neil Collen. The case began in 2004. By the time of the appeal, the Attorney General was the only remaining defendant, and the dispute had narrowed to whether a public right-of-way existed. The Attorney General did not seek representation, and the court decided the issue on the parties’ pleadings and evidence.
The route was described by reference to a map: the claimed section ran from B to C along an old road and onward from C to D, where a former log bridge had stood. By agreement, the bridge crossing had been moved to a nearby point E. The court said the claimed right west of C depended on the status of the original C-to-D route, not the replacement. There was no claim before it for a right-of-way from A to B or west of D.
Witnesses described local residents and boys staying at the Aurora Club hostel using paths in the area, including a crude log bridge. The court found that residents had used the C-to-D route for many years as a convenient way to reach a public road, but that use had fallen almost to zero as transport and other access points changed. It found recreational use by non-locals was minimal. A letter from Collen in December 1980 seeking permission to replace the bridge and expressing concern about liability was, in the court’s view, evidence that he continued to regard the land as his own and had not dedicated it to the public.
The court said a public right-of-way could be established by dedication or, in some circumstances, presumed dedication based on public use without interruption. It concluded that the local use shown here was a neighbourly convenience, not use by the public at large, and found no public right-of-way from C to D or on an alternative route west across the river.
The court also found that public rights over the connecting routes to the east and west had not been proved. It said Coillte’s open-access policy did not itself establish a public right-of-way, and described the claimed route as an inaccessible island surrounded by private land. It made no determination on the old road from A through C, where relevant parties were absent. The counterclaim was dismissed. Any further positive order on the plaintiff’s claim, the court said, must not compromise adjacent owners’ rights.