Public Rights of Way
Public rights of way are different to private rights-of-way and private rights to enter land for sporting or fishing purposes. A public right-of-way is a right over a defined route that is exercised by the public as of right. There can also be public rights such as public rights of fishing and navigation.
It is created by an actual or inferred dedication by the owner and acceptance by the public. Dedication by the owner implies that it is laid out and made available to the public as of right.
This is not the same as permissive access. In practice, it is very hard to establish public rights of way. It must be granted to the public at large, not just a limited category.
A role that is laid out as a public road pathway can be deemed to be a highway if it can be presumed to be dedicated to the public. This is quite a high standard to be met. The must be dedication and acceptance.
In Collen v Petters & Ors O’Leary J. cited from Costello P.’s judgment in Smeltzer v Fingal County Council:
“The law relating to highways and the creation of public rights of way is a very ancient one and the relevant principles are well established. A distinction is made between a permission granted by the owner of land to members of the public to walk on pathways on his land and the dedication of these pathways to the public. To establish a public right of way what has to be proved is an intent on the part of an owner to dedicate his land to the public, an actual dedication, and the acceptance by the public of the dedication.”
“Dedication and acceptance” can arise informally and is most commonly inferred from long usage by the public of a public right of way. That presumption requires the continuous and uninterrupted use of the pathway “as of right”. O’Leary J. held that no such public right of way could be recognised in this instance: the path was used sporadically by boys staying at a nearby youth hostel and the evidence of use by other walkers and hikers was so small as to amount to no more than “the kind of use on an unofficial basis of fields throughout the country by townspeople for Sunday picnics.”
In Walsh v Sligo County Council, there was extensive discussion of the issues of public rights of way in relation to the entrance roads to Lisadell House in Sligo.
Public rights of way may be for certain purposes or types of traffic. For example, it might be for persons on foot only.
The local authority may undertake a duty to maintain public rights of way and may adopt them.
Establishing a Public Right of Way
The creation of a public right-of-way can be by legislation or express or implied dedication. Dedication involves the landowner actually or presumptively dedicating the way to the public, followed by acceptance.
Where land is subject to an apparent right of way, it may be presumed that there has been some dedication in the past. Implied dedication is based on the fiction that there has been dedicated in the past. Long use gives rise to a fictional presumption of dedication.
To establish a public right-of-way, there must be a defined starting point and a defined finishing point. One of those points must be one to which the public has access. There are some cases where a public right-of-way can exist in a cul-de-sac as an amenity.The courts may take account of the nature of the route or track involved and the nature of the land over which it exists.
A right to stray generally over land does not amount to a public right-of-way. There must be a defined path by which the public knows they are trespassing or not.
A person alleged to have dedicated the rights to the public must have legal title to do so; generally, the fee simple owner. The acquiescence of the fee simple owner over a prolonged period is often enough to establish implied dedication.
Evidence of Use
There must be sufficient evidence of public use to enable the court to conclude, taking all circumstances into account that on the balance of probability, the way was dedicated to the public and the public acceptance. If the evidence points to long uninterrupted use by members of the public, this will give rise to an inference that the was at some time in the past dedication of the routes in question to the public, although the time and place ofn dedication need not be determined.
Regard is be had to
- the duration of use, though it need be for any particular length of time.
- the frequency and notoriety of the use
- nature and the purpose of the public user.
It must be open and not by stealth. It must be as of right; not by consent.
No inference or presumption of dedication will arise where the owner persistently acted inconsistently with the alleged dedication. Where the owner wishes to challenge the inference, he must do so in a way communicated to the public. This may be by placing notices or other means of communication.
That a way is maintained by the relevant public authority is evidence that there may be a public right-of-way. The perception of the public as to the nature of the route right is relevant. Evidence may be found in public records maps, aerial photographs et cetera. Newspaper accounts may show the reputation.
Customary rights are long-standing rights in a district. They are generally enjoyed by an undefined class of local people over land from time immemorial without interruption. They are not rights of property. Customs can have the force of law under very old common law principles. Customary rights can affect land without registration.
It is possible that a right to wander over land can be established as a local customary right. This is different to the dedication of a public right of way. It would apply to a specific place. It might have had some ancient or distant origin. However, it would be unusual.
A customary right must itself be certain and must have been exercised without interruption from time immemorial (in practice, 20 years memory, but in theory since 1189) . It does not give a right to take anything from the land
A custom must be sufficiently certain and defined. It must be reasonable. In one case, the claim that the inhabitants made was denied because the rights claimed over a river were unreasonable, as it would exhaust it. The custom cannot throw an unjustifiable burden on the landowner.
Existence since time immemorial means that it is has been enjoyed in living memory. If it is shown to have been used for 20 years continuously, it is presumed to have been enjoyed since time immemorial unless it is proved not to have been enjoyed at some earlier date. The effect is that 20 years’ use is enough in most cases.
Repair and Maintenance where Easement
The land owner is not generally obliged to repair the lands the subject of the easement. He may have so undertaken by the terms of a grant or deed, by statute or where he would otherwise incur liability in nuisance, but such a right will not arise by implication or long use.
Where there is a private right of way, the holder may repair the subject matter of the easement. This is a right and is not generally an obligation unless expressly provided in a deed. For example, the holder of a right of way may clear it of overgrowth. Where a state of disrepair would so adversely affect the servient tenement as to deprive its holder of the benefit of his land or his right to use the land concerned, he may be obliged to repair.
The dominant owner may not increase the scope of the easement so as to place a greater burden, “charge” or imposition on the land affected.
At common law, an obstruction, danger or encroachment to a right of way may be removed. Because doing something creates a risk of liability if what is done causes damage or an accident, the matter should be dealt with in consultation and dialogue with the landowner where possible.
Council Taking over Road
A road authority (usually the Council) may by order, declare, any road over which public rights exist to be a public road. Every such road shall be deemed to be a public road and the responsibility for its maintenance shall lie on the road authority. A road includes a path.
Where it is proposed to declare a road to be a public road, the authority is to satisfy itself that the road is of general public utility. It is to consider the financial implications of the proposed declaration. It is to publish a proposal in one or more newspapers circulating in the area of the proposal, stating where maps can be inspected and stating periods during which the objections and representations may be made.
The roads authority shall maintain a schedule and map of all public roads in respect of which it has responsibility. A road authority was to prepare a schedule and map as soon as practicable after the legislation commenced. It shall be open for inspection at its offices during office hours. It shall be in legible form or be capable of reproduction in legible form.
Sample Council Policy on Adopting Roads
A sample Council published guidance on taking over roads.
The Council is also required to satisfy itself that a road is of general public utility. The phrase general public utility, although not defined, suggests a wider level of benefit to the general public than a limited number of people living on or near a road who would benefit from having that road maintained at the public expense.
Examples of roads that are of general public utility might include
- Roads that access zoned development land.
- Roads that access areas of significant amenity to the Public (e.g. beaches, tourist walks etc) Policy:
In general the Council will consider the following types of road to be of general public utility: o Roads accessing amenities for use by the general public
- Roads providing access to zoned development land
- Roads connecting two public roads with through traffic volume that is comparable to the surrounding public roads.
The Council will not declare a road to be a public road as a means to alleviate the burden of maintenance of the road from individuals. However will consider whether a road is used by the public and may provide assistance by way of the carrying out of works, a financial contribution or otherwise towards the construction or improvement of the road if provision in the annual budget of the Council is made for this purpose.