Rights of way part two: law on public access to land under review

We have been inundated with queries since my last article on rights of way (RoW) setting out the consequences of non-registration of the right of way by 30 November 2021.

Since my last article, the Law Society of Ireland has made a detailed submission to the Department of Justice requesting that the deadline be extended for another six years to sort out the difficulties that have arisen from the law change.

In this week’s article, I intend to set out the options available for registration and, in the coming weeks, I will answer readers’ queries so please do get in touch by emailing ameehan@farmersjournal.ie.

Ways of registering deed of RoW

By far the simplest method of registering a RoW is agreeing a deed of RoW to be signed by both parties.

Normally, the solicitor who is acting for the person who uses the RoW would draft the deed. This would be sent to the solicitor for the person who owns the land (over which the RoW exists) who would review it and approve it, adding any necessary amendments, and then both landowners would sign off on it.

It would then be lodged to the Property Registration Authority (PRA) to be registered.

Application to the PRA using Section 49A procedure

A new, simplified system introduced in 2011 allows landowners to register uncontested RoW directly with the PRA. The procedure is intended only for cases where there is no dispute between the parties.

The application to register an uncontested RoW is made by the person claiming to use it.

The applicant must swear an affidavit to ground the claim, ie to show how and against whom he/she claims they have established a RoW. This affidavit can be drafted by the solicitor for the applicant.

The application to register an uncontested RoW is made by the person claiming to use it

The applicant must also arrange for a Land Registry compliant map to be lodged with the affidavit, with the RoW highlighted and identified on the map (generally in yellow). The fee to be lodged with the application to the PRA is €130.

Notice will then be served by the PRA on all interested parties, including the landowner over whose land the RoW is claimed.

The period allowed for reply or objection is usually 21 days, with an additional five days allowed for service of notice. In the absence of the application being contested, registration may proceed.

Where there are competing claims of fact in respect of a claimed RoW, the PRA may refuse the application and issue an order refusing registration. This can then be appealed to court.

Court order

Naturally, this would be the method of last resort. If the parties disagree about the existence or extent of a right of way and cannot resolve their differences, proceedings are normally issued in the Circuit Court to determine the matter.

Judges are very reluctant to rule on the existence or extent of a right of way and normally encourage the parties to resolve the issue between themselves.

Both parties would normally bear their own costs if the issue is resolved

Mediation is often used as a tool to achieve a resolution whereby an independent mediator (agreed to be appointed by both parties) works on both parties to reach an agreed consensus.

Both parties would normally bear their own costs if the issue is resolved.

Otherwise, if the matter is resolved in court, the person who loses the case typically has to pay both his/her own costs and the other party’s costs.

Implied rights

Implied rights can be argued in the case of subdivision of land parcels and RoW should have been retained to access those land parcels. If a right of way can be shown to have severed a holding when it was vested by the Land Commission, the right crystallises under section 34 of the Land Law (Ireland) Act 1896.

A similar argument can be put forward for a RoW of necessity. If the access is the only route to the property (so that it is landlocked without it), an examination of the legal title and the surrounding physical circumstances may well show that a right of necessity came into existence when parcels of land were split.

An implied right may also arise under what is known as the rule in Wheeldon v Burrows where the history of the division of the parcels and the evidence as to the history of the route can set up a claim for an implied right.

Lost Modern Grant

Another argument that can be put forward is that the RoW has already vested prior to 1 December 2009 (when the law change was first introduced) under the doctrine of lost modern grant.

While the law change seeks to abolish the doctrine so that you cannot rely on it from 1 December 2021, there is an argument that you can continue to rely on it where the right has already been established before 1 December 2009.

However, a test case in the High Court will probably be required to establish whether this argument would stand up, as the legislation is not clear.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising.