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Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 8596
Experience:  Barrister 17 years experience
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A County Council has extinguished a long extablished public

Resolved Question:

A County Council has extinguished a long extablished public right of way through a housing estate. However, the circumstances of the extinguishment leave some doubt about the legality of the extinguishment.
Can a County Council extinguish a public right of way under the following circumstances?
The land through which the public right of way passes is not in the registered ownership of the County Council. The roads, footpaths and green areas are still registered in the Land Registry in the name of the Company of the Developer / Builder of the housing estate. The Company has gone out of business / no longer exists. Technically (I understand) the land passes to the Ministry of Finance. However, no transfer has been made in the Land Registry. No attempt has been made to transfer ownership of the land to the Council. The County Council had take the roads, footpaths, greens 'in charge'.
My questions are: Can the County Council legally (a) extinguish the long established public right of way under those circumstances? (b) Can it physicall close the 'extinguished' right of way - it not being in the Council's ownership? (c) Can the Council authorise others (a third party) to physically close the 'extinguished' public right of way? Curious
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.

Buachaill :

1. At the outset, a County Council may extinguish any public right of way within their jurisdiction. The County Council does not have to own the land on which the public right of way exists in order to do this. Provided the necessary notice requirements are placed in the appropriate newspapers, the extinguishment of the right of way is effective in law to end that right of way for all purposes. It does not matter how long the right of way has existed. It can still be extinguished by the County Council. As part of that jurisdiction, the County Council are fully within their power to "close" that right of way or to authorise other third parties to close the right of way by, for example, physically placing obstacles in the area that constitutes the right of way. There are two to three such cases in each County Council area each year. At the end of the day, apart from engaging in the consultation process and making representations through your County Councillor, there is little that a member of the public can do to prevent such extinguishment happening.

Buachaill :

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Customer:

You seem to missed out on the most important part of my question. The Council has claimed that there are 'legal impediments in relation to ownership' that prevent it from carrying our the physical closure (i.e. the land through which the public the public right of way passes is not in the ownership of the Council.) Your answer seem to contradict this claim by the Council. The road, the footpath and the green area (that form the right of way) are still in the registered ownership of the Builder. Either the Council is not being truthful in relation to the legal impediments or your answer is incorrect. The public right of way has already been extinguished. The Council has authorised a third party to close the right of way but is adamant that there are legal impediments to the Council itself carrying out the closure itself. The legal impediments have to do with the ownership of the land. I would be grateful if you would clarify this matter. There is a lack of logic here.

Expert:  Buachaill replied 1 year ago.
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Expert:  Buachaill replied 1 year ago.
2. Apologies if I didn't address this aspect of the question in my initial answer. In law, the County Council cannot authorise a third party to close a right of way unless they have power themselves to close the right of way. You are correct when you say that there is a lack of logic in the Council's position. Whilst the County Council certainly don't own the land over which the right of way operates, their general powers in relation to all highways and land over which a right of way runs would permit them to take steps to close the right of way, or to authorise the lawful owner to close the right of way. My own opinion, for what it is worth, is that it makes no difference that the land is not in the ownership of the Council, but remains in the name of the builder, when it comes to the issue of whether the Council has power to close an unauthorised right of way. The Council have a general power over all highways or roads used as such, so they have power to close the right of way or authorise someone else to close the former public right of way. Unless there is some other issue present, of which you seem unaware, the facts as presented show no obstacle. I am at a loss as to what the "legal impediments" are??
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Buachaill, Lawyer
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Experience: Barrister 17 years experience
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