Belfast council officers are advising elected representatives to assert a public right of way against a private landowner after a gate was erected on a path in East Belfast and welded shut.
Officials have written a report for the council’s People and Communities Committee, advising councillors to vote to assert a public right of way on foot from Orby Green to Orby Link, beside Castlereagh Road. The committee was supposed to meet this week but was postponed for Queen Elizabeth’s period of mourning.
The report quotes the Access to the Countryside (Northern Ireland) Order 1983, which places a duty on councils to “assert, protect and keep open and free from obstruction or encroachment any public right of way.”
Read more: Welded gate blocking 'well used' East Belfast path causes upset and frustration
In 2014 a fence and gate were erected across a path previously used by the public between Orby Green and Orby Link. The gate was left open, and the public continued to use the path.
In 2020 the gate was welded shut and members of the public alleged that the action had blocked a public right of way. A questionnaire and map were sent out to residents by the council.
The council report states: “The evidence returned showed that people did use the routes as of right and that the developer at the time of construction had intended to create public access through. The evidence also revealed that this route has been used regularly for a prolonged time by members of the public.”
The gate was reopened later in 2020 but reclosed in 2021. The report states: “Prior to this the public’s use of the path was open so that the landowner knew or should have known about it, and did nothing to stop it. The construction of a fence with a gate indicates an intention to retain access through.”
The council report adds: “In 2021 when the gate was welded shut once again, having been reopened, the council were compelled under the above duty to investigate. The council wrote to the landowner asking for the gate to be reopened to restore the public right of way.
“The landowner stated that they held no evidence of a public right of way. The council investigated the matter by means of a community survey. 100 percent of the total returns, 25 respondents, provided evidence that a public right of way had come into existence by presumed dedication.”
For a public right of way to exist at Common Law level there has to be in place two essential elements, firstly a dedication by the owner of the soil, and an acceptance of the right of way by the public. Dedication by the landowner can be either expressed or presumed.
The vast majority of cases will turn on “presumed dedication” by the landowner, as only very rarely will the landowner expressly dedicate his lands as a public right of way.
Council officials state in the report: “Legal services have been consulted and have confirmed that the path appears to meet the common law tests for establishment of a public right of way, so have recommended that the council assert this public right of way as required by its duty under the Access to the Countryside Order.”
A new date for the postponed council People and Communities Committee has yet to be made public.
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