No General Right to Roam
Generally, the person who is the owner or, more correctly, occupier of land has the right to consent to who or who does not enter. Entering the land of another without consent is trespass. Negligence is not required.
Where a person enters land short of being physically pushed into it, he commits trespass. (The person who pushes him would also commit trespass). It is not necessary to prove that any loss or damage has been caused.
Consent to enter land may be implied. There is no right to enter another person’s land where it is obviously private land. If, however, a person effectively allows others to enter or cross the land occasionally, it may be taken that he has consented to that happening.
This consent could of course, be withdrawn, but the withdrawal of consent should be brought to the attention of the persons concerned. The courts, in most cases, adopt a live-and-let-live approach.
Consequence of Trespass
In theory, there is a right to damages for any trespass. If, however, no loss has been suffered, the damages might be nominal only, which would not justify legal action in almost all cases. In some cases, there may be actual damage to property and the persons who cause this can be made liable to pay damages.
In practice, the costs’ risk and the delays of litigation mean that the action would very rarely be taken for technical trespass unless there is some serious aggravating factor or actual damage or loss.
Trespass is not usually criminal unless there is some element of force or other aggravating circumstances. It is a civil matter. There is legislation on forcible entry into land whereby the Gardai can arrest certain persons who refuse to leave under certain conditions.
It is usually possible to get an injunction against a person committing a continuing trespass. An injunction is a court order, a breach of which is contempt of court subject to imprisonment for deliberate breach.
Some trespasses are continuing, whereas others are one-off in nature. There is a continuing trespass where the person or thing remains on the land and is not removed.
In the case of continuing trespass, more than one action may be taken. A continuing trespass involves a continuing remediable intrusion as opposed to a single action, which, although it can be remedied, has caused damage, principally on that initial one-off occasion.
A person may be allowed to enter land for one purpose but may exceed the limits of that consent. That person may commit trespass. For example, somebody might be allowed to cross land but may not do something outside the terms of that consent.
Permission can be withdrawn at any time. The entrant must be given reasonable time to leave.
Private Rights of Way
A private right of way is an easement. A private right-of-way must benefit adjoining land as such. It cannot be just something which benefits the owner in a personal sense.
It may be acquired by deed. It may be acquired by long continuous use as of right without interruption and openly for a period.
If the relevant criteria are met, there can be a private right-of-way for the benefit of a particular piece of land.
No Statutory Right to Access
Unlike the case in England and Northern Ireland, there is no statutory right of access to the countryside in Ireland. In England and Wales, the National Parks and Access to the Countryside Act 1949, as amended by the Countryside Act 1968, provided for a statutory right of public access to open countryside. The open country was defined to include moor-; heath-; down-; and woodland, as well as cliff, riverside and foreshore.
Under the legislative scheme, local authorities were required to survey open countryside in order to assess the levels of access provided and, where appropriate, secure increased access for the public by means of compulsory purchase orders, statutory wayleaves and, primarily, through agreements with landowners with respect to permissive access.
Land is deemed access land for open-air recreational purposes if it is shown on a map of open country issued by mandated countryside bodies. The mapping process was a complex one given that any land shown to be in a cultivated state, such as improved or semi-improved grassland, did not necessarily have to be regarded as open country for the purposes of the act.
Irish v UK Position
There have been arguments as to whether it would be constitutionally permissible to make legislation which allows individuals a right of access to private land for the purpose of roaming, similar to the English legislation.
An Access to the Countryside Bill was introduced in 2013 but did not make much progress through the Dail. It was withdrawn by its sponsor.
It might be expected that this would be limited to defined trials as published by State bodies, as in the UK. Many such trails already go through private land effectively with the consent of the owners. In some cases, the owners may permit the use under incentive schemes.
In practice, there are extensive parts of the country to which the public effectively has access and can roam. Land may be owned by the state or state bodies such as Coillte.
In some cases, such as in parks and forest land owned by Coillte there are byelaws which govern the consent and terms of entry. In other cases, the position is more informal.
In 2004 Minister for the Gaeltacht and Rural Affairs set up Comhairle na Tuaithe (the Countryside Council), comprising representatives of farming organisations, recreational users of the countryside and state bodies with an interest in the countryside to address the issue of access to the countryside. Little progress was made in relation to access to the countryside.
Many marked walking routes are permissive paths which can be blocked at will by landowners. As a result of the lack of rights of access to the countryside, there is little or no infrastructure to support walking routes, that is – footbridges, stiles, gates, boardwalks, signposts and all the rest that casual walkers from other countries take for granted.
There is also a scarcity of walking guidebooks since landowners can successfully call for the deletion of a route crossing their land. Eroded paths cannot be repaired without the agreement of the landowner.
National Trails Office
In 2007 the State established the National Trails office which was to operate under the Irish Sports Council. It now operates under Sport Ireland Outdoors.
Trails have largely been based on nationally marked ways provided in cooperation with local authorities and state agencies such as Coillte, Waterways Ireland and the National parks and wildlife service.
The National Trails Office/Irish Sports Council, in conjunction with Local Authorities, has arranged insurance for waymarked walking routes and other recreational trails in Ireland.
The policy indemnifies private landowners along these routes against claims from recreational users.
In 2008 the Government introduced a Walkway, now the Walks Scheme. This provided a public fund to farmers for establishing and maintaining footpaths. They are paid maintenance payments for trail development,
The Scheme contracts them, or their nominees, to undertake maintenance work on sections of National Waymarked Ways and other priority walks that traverse their lands. The Scheme is administered at a local level by Local Development Companies.
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