Legal query: road to be taken in charge by local authority

Question: I live in a rural laneway with four other residents. It was previously repaired under a contributory scheme where those with adjoining holdings or property pay a percentage of the cost.

This road was identified for improvement works this year but a new resident refused to pay their share which effectively stalled the project.

During the local election campaign representations were made to sitting and pending councillors which culminated into a process to have it taken in-charge as a Council road where repairs would be the full responsibility of the local authority.

A requirement for this procedure to go forward is that owners of all adjoining holdings give verbal consent. This same resident refuses to give consent and discussions with the individual have been negative.

My question is legally can one occupant without any known reason, go against the wishes of the other interested parties? Please advise us what legal options are available because dialogue has failed.

Answer: The Local Improvement Scheme (LIS) provides funding to help local authorities carry out improvement works on private and non-publicly maintained roads.

As the roads are not in charge of the local authority, they remain in private ownership of the landowner.

A review of the folios and maps on the land registry website (landdirect.ie) should enable you to determine who continues to own the land over which the lane exists.

Those that own the land naturally would have greater proprietary rights than those who use the road. So it would be worth checking out whether this uncooperative neighbour actually owns any land over which the laneway exists or just benefits from the laneway.

Each local authority tends to have its own rules on how to apply for and qualify for LIS funding. As part of the application, the local authority generally require each of the beneficiaries’ consent.

A beneficiary normally includes any owner or occupier of agricultural land or resident (residence) on the road that benefits from the improvement works.

The reason for this is to bind the beneficiaries to the terms and conditions of the scheme to include consent to the execution of the work including entry to their lands to make, construct, lay down and/or repair and improve the road.

Furthermore, this consent could extend to the local authority being allowed to erect fences and cut drains, along with necessary materials and land in addition to the width of the road that may be required and to do all things necessary for completion of the road.

If they do not get this prior consent the local authority may leave themselves exposed to a claim that they interfered with a landowners’ property rights and there could be a claim for compensation.

Local authority

A road authority (usually the Council) may by order declare any road over which public rights exist to be a public road.

Section 14 of the Planning and Development Act 2000 refers to the reservation of a public right of way which assumes that the right of way is acknowledged.

Section 14(7)(b) provides that the inclusion of a public right of way in a development plan is evidence of the existence of the right of way unless the contrary is shown.

Thus once the right of way is included in the county development plan is evidence of its existence and there is a burden on the objector or landowner to displace that presumption.

The letter or notification of the inclusion of the public right of way in the county development plan should be sent by the local authority to both the owner and occupier of the land over which the purported right of way exists and should include full particulars of the right of way.

Written submissions or observations with respect to the proposal are normally requested within a stated period of not less than six weeks and advised that they will be taken into consideration by the planning authority.

Where following consideration of any submission or observation received, the planning authority considers the provision should be adopted, with or without modifications, a right of appeal to the Circuit Court exists for the affected owner or occupier of the lands.

The members of a planning authority having considered the proposal and any submissions or observations may by resolution recommend the inclusion of the provision in the county development plan and any person on whom notice has been served shall be notified of the recommendation and a copy of the notice shall be published in at least one newspaper circulating in the area.

In summary, there is a formal process under which a road can be taken in charge by a local authority.

This will require the council to serve notice on the owners and occupiers of the land over which the road exists and I would encourage you to canvass the councillors to ensure that the proposal is included in the next county development plan.

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.

E-mail: aisling@agrisolicitors.ie