Court of Appeal: Wicklow hillwalkers lose appeal against declaration that route on private lands was not subject to public right of way

About this case:

• Judgment:
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Background

Mr Walker’s father purchased the disputed lands in Co. Wicklow as part of a larger holding in 1950, and JosephWalkerbecame beneficially entitled to them in 1980. Adjoining his lands is Annacrivey Wood, managed and controlled by Coillte, popular with hill walkers including the Enniskerry Walking Association – who contended that Mr Walker’s lands were subject to a public right of way. The appellants in the present case, Niall Leonachand Noel Barry, are members of Enniskerry Walking Association.

In 2002, a booklet of hill walks was published, identifying the contested route on Mr Walker’s lands as a public right of way – which Justice Whelan said significantly escalated the dispute between the parties. Thereafter, correspondence ensued between the parties in which Mr Barry relied on maps from the 18th and 19th century, which suggested that the contested route was for public use. In 2008, Mr Walker sought an injunction restraining Enniskerry Walking Association from entering onto the lands without lawful authority – however this did not proceed to a hearing and the Association gave an undertaking that they would not enter the lands pending the trial of action.

In 2012, Justice MacMenamin delivered his judgment on the trial of action – making a declaration in personam that Mr Walker’s lands were not subject to any public right of way. He concluded that an express dedication of a right of way was not established by Mr Leonach and Mr Barry.

Court of Appeal

In the Court of Appeal, Mr Leonach and Mr Barry identified the following issues for determination:

1. Is Mr Walker, a private landowner, entitled to obtain an in personam negative declaration that the disputed route is not a public right of way?

2. If yes, does the evidence establish that the disputed way is a public right of way?

Justice Whelan said that at issue was whether Mr Leonach and Mr Barry established a public right of way which could be inferred from indirect evidence of dedication. She said that the onus rested with Mr Leonach and Mr Barry to show that the evidence adduced was sufficient to lead the trial judge to a conclusion that on the balance of probability the owner of the property dedicated a right of way over his lands to the public.

Justice Whelan identified three distinct elements to be satisfied:

i. Evidence of user by the public as of right of the way over the owner’s land.

ii. Evidence from which an inference of dedication to the public can be made. Dedication is implied where an intention to devote the way over the land is clearly manifested by the conduct of the owner. The animus dedicandi is the vital element of every dedication.

iii. Evidence must be adduced to entitle the court to infer and find acceptance by the public of the dedication of the way.

She added that “User alone does not establish or prove the creation of a public right of way rather dedication is the fundamental proof”.

Delivering the judgment of the three-judge Court of Appeal, Justice Whelan concluded:

Dismissing the appeal, the Court was satisfied that the trial judge did have discretion to make a negative declaration in personam in the circumstances, however the terms of the declaration required to be modified to ensure it was clear that the negative declaration be directed to the appellants alone. Justice Whelan explained that the current formulation of the declaration, considered without reference to the detailed judgment, appeared to “potentially oust the jurisdiction of the courts in futuro to make determinations” regarding the contested route – as such, the terms of the order needed to be adjusted to ensure clarity and in the interest of third parties who may come to rely on the Court order.