Edward Walsh and Another v County Council for County of Sligo

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly, Mr Justice McKechnie and Mr Justice MacMenamin.
• Judgment Date: 11 November 2013
• Neutral Citation: [2013] IESC 48
• Court: Supreme Court
• Docket Number: [S.C. No. 89 of 2011]
• Date: 11 November 2013

Walsh & Cassidy v Sligo Co Council

BETWEEN:

EDWARD WALSH and CONSTANCE CASSIDY

Plaintiffs/Appellants

- and -

THE COUNTY COUNCIL FOR THE COUNTY OF SLIGO

Defendant/Respondent

[2013] IESC 48

Appeal No. 089/2011

THE SUPREME COURT

LAND LAW

Easements

Public rights of way - Dedication - Whether public right of way affected avenues on landed estate - Time of dedication - Incapacity to dedicate on grounds of lack of title - Nature of public user as of right - Right to maintain claim for public right of way - Law regarding dedication - Acts of opposition from landowner - Admission of hearsay evidence - Bruen v Murphy (Unrep, McWilliams J, 11/3/1980); Connell v Porter (1972) [2005] 3 IR 601; Smeltzer v Fingal County Council [1998] 1 IR 279; Folkestone Corporation v Brockman [1914] AC 338; R (Godmanchester TC) v Environment Secretary [2007] UKHL 28, [2008] 1 AC 221; Poole v Huskinson (1843) 11 & W 827; Mann v Brodie (1885) 10 App Cas 378; The Queen v Petrie (1855) 4 El & B 737; Farquhar v Newbury Rural District Council [1909] 1 Ch 12; Young v Cuthbertson (1854) 1 MACQ 455; Collen v Petters [2006] IEHC 205, [2007] 1 IR 790; Turner v. Walsh (1881) 6 App Cas 636; Stoney v Eastbourne Rural District Council [1927] 1 Ch 367; Williams-Ellis v Cobb [1935] 1 KB 310; Bright v Walker (1834) CM & R 211; R v Oxfordshire County Council, Ex P Sunningwell Parish Council [2000] 1 AC 335; R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889; Blount v Layard [1891] 2 Ch 681; Simpson v Attorney General [1904] AC 476; Attorney General v Antrobus [1904] 2 Ch 188; Cumbernuald and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd [1992] SC 357; Wild v Secretary of State for Environment [2009] EWCA 1406, [2009] All ER 198; Murphy v Wicklow County Council (Unrep, Kearns J, 19/3/1999); Giant's Causeway Co Ltd v Attorney General (1898) 32 ILTR 95; Moore v Attorney General (No 2) [1930] 1 IR 471; Incorporated Law Society v Carroll [1995] 3 IR 145; Boyd v Great Northern Railway Co (1895) 2 I 555; Smith v Wilson [1903] 2 IR 45; McCauley v Minister for Posts and Telegraphs [1966] IR 345; R v Surrey County Council (1979) 40 P & CR 390; R v Lancashire County Council [1980] 1 WLR 1024; Holloway v Egham Urban District Council (1908) 72 JP 433; Coats v Herefordshire County Council [1909] 2 Ch 579; Jones v Bates [1938] 2 All ER 237; Director of Public Prosecutions v Jones [1999] 2 AC 240; In re Ward of Court [1996] 2 IR 79; Bord na gCon v Murphy [1970] IR 301; The King v Lambe (1791) 2 Leach 552; Morrissey v Boyle [1942] IR 514; Woolway v Rowe (1834) 1 Ad & El 114; M'Kenna v Earl of Howth (1893) 27 ILTR 48; Evans v Merthyr Tydfil Urban District Council [1899] 1 Ch 241; Dublin County Council South v Balfe Ltd (Unrep, Costello J, 3/1/1995); Falcon v Famous Players Film Co [1926] 2 KB 474; Smith v Wilson [1903] IR 45; Dawes v Hawkins (1860) 8 CB (NS) 848; London Transport Board v Moscrop [1942] AC 332; Hue v Whiteley [1929] 1 Ch 440 and Jones v Bates [1938] 2 All ER 237 considered - Appeal allowed in part (89/2011 - SC - 11/11/2013) [2013] IESC 48

Walsh v Sligo County Council

Facts: These proceedings concerned a public right of way over the estate of the appellants. The respondent claimed that public rights of way affected certain avenues of that estate due to actions taken by the previous owners, the Gore-Booths, an Anglo-Irish family who had owned the land for centuries. In 1904, the then owner of the estate, Sir Josslyn Gore-Booth, transferred 28,000 of the 32,000 acres of the estate to the Land Commission, under the Land Purchase (Ireland) Act 1903 (Wyndham"s Act), reducing its size to some 3,000 acres. Nevertheless, the reduced estate developed into a vibrant commercial operation, and staff and individuals with business interests were given permission to use the various avenues on the estate. However, from the 1940s onwards, the estate went into decline; and in 1968, 2630 acres were sold to the Land Commission, leaving only 410 acres. In the same year, the mansion house was opened to the public on payment of a fee. In 2003, the appellant purchased the estate, and they continued to allow the public to visit the mansion house. However, they proceeded to block the alleged public rights of way.

In 2009, the appellants launched proceedings against the respondent seeking a declaration that their estate was not subject to any right of way. By a counterclaim, the defendant argued that rights of way identified in the pleadings had been dedicated to the public by the predecessors in title of the appellants, and that the public had accepted that dedication. The High Court determined that four avenues were subject to a public right of way (A-B, B-C, B-D, and B-E); an appeal was subsequently initiated.

Held by Fennelly J., McKechnie J. and MacMenamin J. (with Denham C.J. and Murray J. concurring) that a public right of way may be established by proof of long user by the public as of right, leading to express or implied dedication by the owner of the ground over which it passes, and acceptance of such dedication by the public. The landowner, therefore, had to have had the intention to dedicate, which could be established by inference. An inference of a dedication could only be established if it was proved that the public used the highway without force, not in secret, and without permission.

Before the High Court, it had been determined that there was evidence of user of the four routes by the public since the 1950s. This evidence had come from 25 witnesses who had been called by the respondent, and had experience of using the avenues. Avenue B-C was the main avenue that led to the mansion house. It was clear that prior to the 1950s, the gate at the entrance to this route was closed and only used by members of the family and their staff. The estate was then under the wardship of the court from 1944-1982; therefore, no dedication by the owner could have been made during this time, save if the President of the High Court had have done so. Finally, after 1982, it was established that even though the gate to this avenue was generally open, it was closed from time to time by the owner. This showed that rights of ownership were being exercised. In regards to Avenue A-B, it was found that this route was heavily exercised by the public, who had freely crossed it in order to get to a beach. Avenue B-D had been a route that Sir Josslyn Gore-Booth had permitted staff and individuals with business interests to use in the early 1900s, though it was established that this permission was revoked by him in the 1940s. It was said that such permission and revocation amounted to an exercise of ownership, and because the estate entered wardship soon after, indicated that there was not been uncontrolled public user on the route. Finally, in respect of Avenue B-E, it was found that use of the land was limited with insufficient evidence available to prove that it had been subject to uncontrolled public user.

The High Court judge had determined that the dedication of the four avenues had been made in the period 1857-61. However, it was held that that judgment could not stand because evidence suggested that the then owners of the estate would not have tolerated uncontrolled public user. It was also said that the judge had erred in deciding that user commencing in the 1950s could be used to infer that owners of the estate a century earlier intended to dedicate those way to the public, which was said to be illogical. It was, therefore, decided that the appeal would be allowed on all avenues save A-B. It was held that the evidence before the court suggested that Avenue A-B had been used by the public before 1819, as a means of reaching a beach. Nevertheless, only part of Avenue A-B was actually owned by the appellants. On that basis, the appeal in respect of Avenue A-B was dismissed but only on the part of the route that was owned by the appellants. It was also held that the learned judge had erred in finding a public right of way over the whole route because the owners of the route other than the appellants had not been party to proceedings.

BRUEN & ORS v MURPHY & ORS UNREP MCWILLIAM 11.3.1980 1980/4/677

CONNELL v PORTER 2005 3 IR 601

LAND PURCHASE (IRL) ACT 1903

ROADS ACT 1993 S73

ROADS ACT 1925 S24

ROADS ACT 1925 S25

ROADS ACT 1993 S11

ROADS ACT 1993 S73(11)

SMELTZER v FINGAL CO COUNCIL 1998 1 IR 279

FOLKESTONE CORP v BROCKMAN 1914 AC 338

R (GODMANCHESTER TOWN COUNCIL) v SECRETARY OF STATE FOR THE ENVIRONMENT 2007 3 WLR 85

RIGHTS OF WAY ACT 1932 (UK) S 1(1)

POOLE v HUSKINSON 1843 11 M&W 827

MANN v BRODIE 1885 10 APP CAS 378

THE QUEEN v PETRIE 119 ER 272 1855 4 E & B 737

R (GODMANCHESTER TOWN COUNCIL) v SECRETARY OF STATE FOR THE ENVIRONMENT 2007 3 WLR 85

FARQUHAR v NEWBURY RURAL DISTRICT COUNCIL 1909 1 CH 12

YOUNG v CUTHBERTSON 1854 1 MACQ 455

COLLEN v PETTERS 2007 IR 760

TURNER v WALSH 1881 6 APP CAS 636

STONEY v EASTBOURNE RURAL DISTRICT COUNCIL 1927 1 CH 367

WILLIAMS-ELLIS v COBB 1935 1 KB 310

BRIGHT v WALKER 1834 CM & R 211

R v OXFORDSHIRE CO COUNCIL (EX PARTE SUNNINGWELL PARISH COUNCIL 2000 1 AC 335

R (BERESFORD) v SUNDERLAND CITY COUNCIL 2004 1 AC 889

RIGHTS OF WAY ACT 1932 (UK)

BLOUNT v LAYARD 1891 2 CH 681

SIMPSON v AG 1904 AC 476

AG v ANTROBUS 1905 2 CH 188

HIGHWAYS ACT 1980 (UK) S31(1)

CUMBERNAULD & KILSYTH DISTRICT COUNCIL v DOLLAR LAND (CUMBERNAULD) LTD 1992 SLT 1035

WILD v SECRETARY OF STATE FOR ENVIRONMENT 2009 AER (D) 198 2009 EWCA CIV 1406

MURPHY v WICKLOW CO COUNCIL UNREP KEARNS 19.3.1999 2001/16/4358

STATE PROPERTY ACT 1954

STATE PROPERTY ACT 1954 S46

36 GEO III C55 S46

GIANTS CAUSEWAY CO LTD v AG 1898 5 NIJR 301

MINISTERS & SECRETARIES ACT 1924 S6(1)

MOORE v AG (NO 2) 1930 1 IR 471

INCORPORATED LAW SOCIETY v CARROLL 1995 3 IR 145

BOYD v GREAT NORTHERN RAILWAY CO 1895 2 I 555

SMITH v WILSON 1903 2 IR 45

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