Steven Matthews (Wicklow, Green Party)
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I want to discuss the issue of public rights of way in the country. I expect this is a matter for the Department of Justice but I nonetheless want to thank the Minister of State, Deputy Butler, for being here tonight to take this issue.

The background to me raising this, apart from having some experience in dealing with rights of way issues where we have tried to include them in county development plans over the years, is that a case was brought to my attention recently of two hillwalkers in Enniskerry, two elderly, retired and absolute gentlemen, who loved nothing more than walking through many of the walkways and hills of Wicklow. They became involved in a situation where an alleged right of way had been blocked by the landowner. This evolved into a very complex and long court case situation. The case has been decided and has been publicly documented. The two gentlemen will not mind me mentioning their names, which are Mr. Leonach and Mr. Barry. These are two highly regarded stalwarts of the community in Enniskerry.

They have ended up in a situation where they owe somewhere in the region of €40,000 as a result of this fine. This is a very bizarre case, extremely interesting for any of us who are reading it from the outside, but obviously very harrowing and stressful for the two gentlemen involved. They are not men of means by any manner and this is a huge debt for them to incur at this stage in their lives. I have met with both of them and have discussed the issues around rights of way. It is a very complex part of Irish law, land use law and our Constitution in which we enshrine private land ownership and the rights which go with that. We also know that we are a nation that appreciates and loves our countryside and we have had these walkways in place which people have used for many years such as Mass paths, access to graveyards, and across old country coach roads, etc.

Currently, under our Irish law, we have not really enacted laws to allow us to progress this and to establish rights of way and how we deal with those contested rights of way. We rely much of the time on old English laws. We have judges trying to interpret old maps, precedent law and the common law system. It is very complex and convoluted.

Our county councils are obliged - we are going through the planning Bill at the moment - to include rights of way in county development plans. I have been at meetings where we tried to put what we thought were rights of way into county development plans, but landowners have come along and said that they have allowed people access to them but they are not rights of way.

We have a situation where we have a very limited number of rights of way going into our county development plans. I hope the Minister of State, Deputy Butler, can take this back to the Minister for Justice, Deputy McEntee, and the Department of Justice. I really feel we need to start a process where we can simplify this, or perhaps oversimplify it because it is such a complex area. We need to start to establish what needs to be in place to prove something is a right of way. We have to protect landowners' rights, because it is not just a matter of people just being able to walk all over people's land, although some people would advocate that. I believe we should uphold the rights of landowners but accommodate these old rights of way. We must try to find a solution to the problem. Hopefully, we can start the process here tonight.

Mary Butler (Waterford, Fianna Fail)
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Gabhaim buíochas leis an Leas-Cheann Comhairle agus leis an Teachta. I convey the apologies of my colleague, the Minster for Justice, Deputy Helen McEntee, who regrets she cannot be here for this issue. On behalf of the Minister, I thank Deputy Steven Matthews for raising this important issue and for giving me the opportunity, hopefully, to provide clarity on it.

Deputy Matthews summed it up very well when he said it was a very complex issue. As the Deputy may be aware, responsibility for the legislation for public rights of way sits with the Minister, Deputy Darragh O’Brien, in the Department of Housing, Local Government, and Heritage. However, inquiries with this Department were made and we have been provided with some information on the matters raised.

The Planning and Development Act 2000, as amended, legislates that it is a matter for the relevant planning authority to consider where there is a need for a public right of way. The relevant planning authority may enter into discussion with the relevant landowners under section 206 of the Act in order to achieve the creation of a public right of way by agreement. If an agreement cannot be reached, where it appears to the planning authority that there is need for a public right of way over any land, the planning authority may, by resolution, make an order creating a public right of way over the land in accordance with section 207 of the Act. The planning authority must follow the process prescribed under section 207 of the Act.

The process under section 207 of the Act is a reserved function of the elected members of the relevant planning authority and a process in which the Minister for Justice has no function. The decision to create a compulsory right of way by a planning authority may be appealed to An Bord Pleanála in accordance with section 207(5) of the Act within four weeks of being notified of an order under section 207(4) of the Act. It is then a matter for An Bord Pleanála to consider any appeal.

In addition, the Act places responsibility for the maintenance of public rights of way directly with local authorities, by requiring them to preserve existing public rights of way through mapping and listing them as part of their development plans.

Section 10(2)(o) of the Act requires that all development plans include objectives for:

... the preservation of public rights of way which give access to seashore, mountain, lakeshore, riverbank or other places of natural beauty or recreational utility, which public rights of way shall be identified both by marking them on at least one of the maps forming part of the development plan and by indicating their location on a list appended to the development plan, ...

The "permissive access mechanism" described in Circular Letter PL 5/2015 can complement the statutory development plan objective and can deliver an integrated approach to combining agreed ways and trails with public rights of way statutorily defined in the plan. The overall combined approach, providing an inventory of permissive access routes in addition to rights of way, represents a best practice approach.

I have been further informed that there are no substantive changes to provisions in the draft Planning and Development Bill 2023 pertaining to public rights of way compared to the provisions in the current Planning and Development Act 2000, as amended, which I referred to. As the Deputy knows, that other Bill is currently on Committee Stage.

Steven Matthews (Wicklow, Green Party)
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I thank the Minister of State for the response. Having spent nine weeks and 126 hours so far in the basement dealing with the new Planning and Developing Bill, I believe that many of those sections referred to by the Minster of State will no longer be relevant because of the new section numbers of the Bill. I take the Minister of State's point on this. I have been through county development plan meetings where we had what we thought were rights of way but these are contested. It is when the landowner comes back that there is the issue.

I accept what the Minister of State said about the development plan and that the local authority has the responsibility for setting out in the development plan where the public rights of way are but we need to go a step back before that. The issue is where these are contested. This probably comes under the Department of Justice, and this concerns my suggestion as well. The ones that are not contested go into the county development plan. There is that whole process of appeals. One can appeal to the board, etc., and the members pass the resolution. However, it goes back to before that.

I have suggestions I would like to put to the Minister. These are to bring in primary Irish legislation to define and protect public rights of way so councils have a clear definition of what constitutes a public right of way. The legislation needs to provide for disputed routes to be referred probably for arbitration. I am thinking of something like a commission with a judge to chair it, where we look at contested rights of way around the country and where, once and for all, we can finally define a public right of way and prove it is a public right of way.

In the case of Mr. Leonach and Mr. Barry in Enniskerry, they provided a map, dating back to the 1700s, of an old coach road.

Bizarrely, that case never concluded that it was a public right of way. What the judge decided was that the two gentlemen could no longer walk it but the Minister of State or I could. That just highlights the complexity of this. We need to put something in place to deal with these contested rights of way.

Mary Butler (Waterford, Fianna Fail)
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The Deputy has made a very important point in talking about disputed routes. Two weeks ago, I was in Cashel to launch the St. Declan's Way walk. It is another part of the strategic plan. It is the most fantastic walk between Cashel and Ardmore. What struck me on that walk was the number of landowners who were present, who had engaged and who had made the walk the success it was. There was funding from the Department of the Minister, Deputy Humphreys, the LEADER programme, the local authorities, loads of volunteers and a committee set up, but it could never have happened without the landowners engaging. This was an old traditional, religious walk that was there many years ago, passing through Mountmelleray, in Waterford, that the monks used to walk. More than 4,000 people walked it last year.

To add to the Deputy's point, when we talk about disputed routes, I think that is the only time we hear any issues around it. People love walking. They love getting out. We have greenways now throughout the country, which is fantastic to see.

I reiterate the fact the local authorities have sufficient powers under planning legislation for the creation of rights of way. Sometimes, however, when these particular rights of way are forced, it can end up with neighbours falling out with neighbours, and that is the last thing you want. I will certainly take on board the points the Deputy made about the possibility of some form of arbitration. He is speaking specifically about disputed routes. I am sorry those two gentlemen he met had that negative experience.