Wicklow People (West Edition) - - NEWS -

TWO hill­wak­ers have failed to prove as a mat­ter of law a pub­lic right of way ex­ists over about 500 me­tres of a landowner’s lands in an area of ‘great scenic beauty’ in the Glen­cree val­ley, the Court of Ap­peal has ruled.

The fact Niall Leonach and Noel Barry of the Enniskerry Walk­ers As­so­ci­a­tion had not proven the ex­is­tence of a pub­lic right of way across the dis­puted route is not proof whether a pub­lic right of way ex­ists or not, the court stressed yes­ter­day (Tues­day).

In those circumstance, the court said it would mod­ify a dec­la­ra­tion granted by the High Court against the two in favour of Enniskerry landowner Joseph Walker. The High Court dec­la­ra­tion was to the ef­fect that Mr Walker’s lands, and 48.5 acres of ad­join­ing un­reg­is­tered land at An­nacrivey, Enniskerry, are not sub­ject to any pub­lic rights of way.

The ap­peal court would mod­ify the dec­la­ra­tion so as not to pre­vent the courts mak­ing any fu­ture de­ci­sions in any other pro­ceed­ings regarding the dis­puted route, Ms Jus­tice Máire Whe­lan said. The pre­cise mod­i­fi­ca­tion will be set out later.

The three judge court on Tues­day dis­missed the ap­peal by Mr Leonach and Mr Barry, chair­man and sec­re­tary re­spec­tively of the Enniskerry Walk­ers As­so­ci­a­tion, af­ter the High Court re­jected their claim that, since 1760, there was a pub­lic road in the dis­puted area known as the Old Coach Road.

Fol­low­ing a dis­pute with the EWA and oth­ers over whether a pub­lic right of way ex­isted, Joseph Walker, from Glen­cree Road, Enniskerry, ini­ti­ated pro­ceed­ings in 2008 con­tend­ing his lands at An­nacrivey, ac­quired by his fa­ther in 1945, were not sub­ject to pub­lic ac­cess.

He dis­puted claims by Mr Leonach, Monastery Grove, Enniskerry, and Mr Barry of Monastery, Enniskerry, there was a right of way about halfway be­tween Enniskerry and Glen­cree and the route was marked as a road on maps of the ar­eas for some 250 years.

In his High Court judg­ment of 2012, Mr Jus­tice John MacMe­namin found 12 maps dat­ing from 1760 to 1975 ad­duced in ev­i­dence by Mr Leonach and Mr Barry were not con­sis­tent with their claim a right of way ex­isted as al­leged.

He held, while a path may have ex­isted at some time, it was most prob­a­bly an es­tate track and not a pub­lic high­way and also noted a struc­ture known as Canavan’s Cot­tage stood di­rectly across the route of the al­leged right of way.

The judge also crit­i­cised the at­ti­tude demon­strated by both sides, say­ing nei­ther had shown the de­gree of tol­er­a­tion nec­es­sary.

Giv­ing the Court of Ap­peal judg­ment dis­miss­ing the ap­peal on Tues­day, Ms Jus­tice Whe­lan, with whom Mr Jus­tice Michael Peart and Mr Jus­tice Paul Gilli­gan agreed, said, be­cause the fun­da­men­tal proofs were not pro­vided to sat­isfy the ev­i­den­tial requirements for a claim the dis­puted way con­sti­tuted a path­way, the High Court find­ings could not be set aside on ap­peal.

It was ‘note­wor­thy’, while the dis­puted way ran over lands of oth­ers apart from Mr Walker, the ap­pel­lants had not ap­plied to have the ad­join­ing prop­erty own­ers joined to the case, cir­cum­scrib­ing the High Court’s abil­ity to make any dec­la­ra­tions or or­ders af­fect­ing their free­hold own­er­ship.

There was ‘un­con­tro­verted’ ev­i­dence to es­tab­lish the free­hold ti­tle to the dis­puted way was vested in the Wing­field fam­ily, later Vis­counts Pow­er­scourt, be­tween 1603 and 1897 but no ev­i­dence was ad­duced in the High Court by the ap­pel­lants con­cern­ing the free­hold ti­tle from 1897 to 1950.

Another key omis­sion was the fail­ure to call wit­nesses from Wick­low County Coun­cil to prove po­ten­tially sig­nif­i­cant doc­u­ments al­legedly sup­port­ing claims by the ap­pel­lants Mr Walker and his wife had ac­knowl­edged a right of way dur­ing a 1980s coun­cil sur­vey of rights of way.

The High Court had clas­si­fied the fact Mr Walker and his fa­ther would oc­ca­sion­ally per­mit peo­ple walk on the lands was tol­er­ance of ‘oc­ca­sional tres­pass’ in­con­sis­tent with a claim of im­plied ded­i­ca­tion by ei­ther or both of the dis­puted route to pub­lic use.

It was clear from the ev­i­dence be­fore the High Court the ap­pel­lants had not es­tab­lished an ex­press ded­i­ca­tion of a right of way or in­fer­ence of such a right of way from in­di­rect ev­i­dence of ded­i­ca­tion by the owner of the prop­erty, she said.

There was ev­i­dence be­fore the High Court for it to con­clude the route was more prob­a­bly at all times an es­tate ac­cess track in­con­sis­tent with user as a pub­lic right of way, she said.

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