Madam, - The issue of access to land for recreational use is now the subject of intense debate, much of which - to judge by the contributions printed by The Irish Times - is ill-informed, argumentative and suspect in its aims. It behoves responsible parties to attempt to clarify the existing situation; it simply is not good enough to pronounce "solutions" without setting out the anomalies such solutions are designed to rectify.
Let us try, therefore, to look at the issue in a calm and objective manner, resting on the law, common sense and a proper respect for the rights of individuals. After all, rights to land in Ireland are not some abstract concept to be dismissed arbitrarily by some outraged suburban hikers, or, indeed, an outraged-on-their-behalf columnist. Rights to land in this country have always touched upon our deepest concerns since they began to be formulated by common law and statutory law around 1189. Out of respect for age, if nothing else, we should give the question the concentration it deserves. We begin to do this by ceasing to parrot the paradox that is a "right" to roam.
Whatever about the much-vaunted economic merits of walking tourism, the ICMSA will insist that the commercial and property rights of landowners - our farmer members - will continue to be protected. In the atmosphere of legal uncertainty that has been so carefully fostered by some proponents of unfettered access, landowners are very wary that permissive tolerance of access to their lands could ripen into rights. In the opinion of the ICMSA, those fears may not be completely unfounded and the concerns of the landowners must be squarely addressed.
It is self-evident that the existing common law on access is antiquated, complex and indefinite, if not downright contradictory. The proposal for reform of the law on easement by prescription leaves this associated part of land law in a legal wilderness. Experience in other common law and civil law jurisdictions demonstrates the need for reforms and codification. To that end, ICMSA proposes the following:
1. Access should be on the basis of an expressed or implied bare licence. This would be defined for statutory purposes as permission to enter land (a) solely for recreational purposes outlined and (b) on conditions and terms as set out in the proposed act or statutory code.
2. There should be a statutory presumption that all access is based on a bare licence, unless access is solely on public right of ways.
3. All legislation on land access should be contained in a single new Act. This would facilitate the understanding of rights and obligations for all parties concerned.
4. The legal fiction surrounding the phrase "recreational user" should be removed.
5. The current and future waymarked walkways should be given a statutory basis similar to that provided in the New Zealand Walkways Act provided that full compensation is provided to the landowners.
6. An agreed or implied bare licence would allow walkers to roam certain lands such as mountains, etc, as may be delineated by local authorities. Landowners, of course, can readily withdraw any agreed or implied licence.
7. All codes of practice should have a statutory base.
8. Breaches of legislation would be a criminal offence and, in the case of access by bare licence, the entrant would immediately assume the status of a trespasser.
9. Registration of existing public rights of way should be undertaken and completed within a five-year period and an arbitration panel established to resolve difficulties. User or lawful interruption in this period would be ignored for the purpose of determining the existence of a public right of way.
The ICMSA has no interest in grandstanding or megaphone negotiation on this issue. We believe, moreover, that genuine walkers will recognise that it is manifestly unfair to expect landowners to accept a system that dilutes their title to their own land - without compensation - while simultaneously enriching touring companies, hotels, etc, which effectively are selling "access" to land they do not own. We believe our proposals can form the basis for a progression of the whole debate. - Yours, etc,
PAT O'ROURKE, President, Irish Creamery Milk Suppliers' Association, Castletroy, Co Limerick.