Peter Burke (Longford-Westmeath, Fine Gael)
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Sections 206 and 207 of the Planning and Development Act 2000, as amended (the Act) provide for the creation of rights of way by planning authorities where it appears that there is need for a public right of way over any land. The laws regarding public use of land for walkers does not fall under the Act and therefore does not fall under the scope of the Review of Planning Legislation currently being undertaken by the Attorney General's Office.

In addition, local authorities have the power to declare public roads under the Roads Act 1993, as amended, and once a public road is declared, a public right of way is created and it is the responsibility of the local authority to maintain the public road and the public right of way. This is a matter which falls under the responsibility of my colleague the Minister for Transport.

The creation of public rights of way by local authorities is a reserved function of the elected members under Schedule 14A of the Local Government Act 2001, as amended, and is a matter for which I, as Minister with responsibility for Planning, have no statutory function.

The laws regarding access to property are a separate matter and it is understood from my colleague the Minister for Justice, that whilst the Occupiers Liability Act 1995, and the proposed amendments to this Act, deal with the duty of care shared by visitors, recreational users and trespassers with private property owners while visitors, recreational users and trespassers are on private property, this Act does not make provisions for ensuring public access to recreational lands that are held in private ownership or protecting public use of land for walkers.

Additionally, legislation regarding private rights of way is the also responsibility of the Minister for Justice through the Conveyancing Law Reform Act 2021. Private rights of way, also known as prescriptive rights of way, serve the property of a private owner, rather than belong to members of the public generally.

Peter Burke (Longford-Westmeath, Fine Gael)
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The provisions relating to the creation of a new public right of way by a local authority are set out in sections 206 and 207 of the Planning and Development Act 2000, as amended (the Act).

Section 206 (creation of public right of way pursuant to agreement (PROW)) provides enabling power to a planning authority to enter into an agreement with any person having the necessary power in that behalf for the creation of a public right of way. Such agreement shall be on such terms as to payment or otherwise as may be specified in the agreement and may, if agreed, provide for limitations or conditions affecting the PROW. Particulars of any such agreement are required to be entered in the planning register of the concerned planning authority.

Section 207 (compulsory powers for creation of public right of way) provides that if it appears to a 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 such case, the planning authority is required to serve notice in this regard on the owner and occupier of the land and publish the notice in one or more newspapers circulating in its functional area. Members of the public can make submissions or observations on the proposal which shall be considered. The planning authority, having considered the proposal and any submissions or observations made in respect of it, may by resolution, as it considers appropriate, make the order, with or without modifications, or refuse to make the order and any person on whom notice has been served shall be notified accordingly.

Any person who has been notified of the making of an order under section 207 may appeal to An Bord Pleanala against the order within 4 weeks of being so notified. The Board may confirm the order with or without modifications or annul the order. Particulars of a public right of way created under the section 207 procedure are also required to be entered on the local planning register.

Also, section 10(2)(o) of the Act requires that a development plan shall include objectives for “the preservation of public rights of way which give access to seashore, mountain, lakeshore, riverbank or other place 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 legislation requires each development plan to include an objective for the preservation of public rights of way that give access to places of natural beauty or utility and for such rights of way to be listed in an appendix and identified on development plan maps. The identification of a public right of way requires verification and the burden of proof rests with the local authority. Whilst there are varying examples from local authorities of the level of detail provided as part of fulfilling this objective, local authorities should endeavour to identify and list public rights of way as they come to the attention of the planning authority.

In addition to the requirement set out in Section 10(2)(o) of the Act, there are a number of mechanisms that the local authority can use to secure the development of improved access to the countryside and amenities besides this statutory process. 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 development plan. This approach has the potential to extend the amenity and recreational offer, and as such provides better access and improved connectivity throughout a local area or the wider county area. The overall combined approach, providing an inventory of permissive access routes in addition to rights of way, represents a best practice approach.

The making of, or refusing to make, an order creating a public right of way over any land is a reserved function of local authorities as provided by Schedule 14A of the Local Government Act 2001, as amended, and is not one in which I have any statutory function in my role as Minister with responsibility for Planning.

Under section 30 of the Planning and Development Act 2000, as amended, I am specifically precluded from exercising any power or control in relation to any particular case with which a planning authority or An Bord Pleanála is or may be concerned.