An official public right of way has been asserted in North Belfast by the council on a pre-existing path on private land.
At Belfast City Council ’s recent meeting of its People and Communities Committee, elected representatives agreed to assert a public right of way as a means of diverting the path for the public between Floral Park and Antrim Road.
The path goes through a bank on private land rising from the circular residential park at BT36, beside Whitewell Road, up into Antrim Road, just north of Belfast Zoo.
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The council report states: “In 2021 an application was received by the council to develop land which a route, deemed by Legal Services as a public right of way, crosses. This route was previously investigated in 2005.
“However, despite a grant of planning permission being given, the development of the land did not proceed and the assertion was not undertaken by the council. The current proposal includes a diversion of the existing route. The land in question has previously been granted planning permission and planning is likely to be granted again.
“Article 16 of the Access to the Countryside (Northern Ireland) Order 1983 gives the Department power to divert any public right of way where this is needed to enable compliance with a planning permission. The council wrote to DAERA and were advised that the route can only be diverted after it has been asserted.
“Legal Services are satisfied that previous evidence supports the case for the route being a public right of way and that status cannot have changed since that time.”
The Access to the Countryside (Northern Ireland) Order 1983 places a duty on District Councils to “assert, protect and keep open and free from obstruction or encroachment any public right of way.”
For a public right of way to exist at Common Law there are two essential elements, dedication by the owner of the soil, and 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 a landowner expressly dedicate his lands as a public right of way.
The council lists evidence of “presumed dedication” by the landowner in this case. The report states: “The path was constructed through amenity space by the developer providing a pedestrian link between Floral Park and Antrim Road. The route in question has been used “as of right” by the general public.
“The use continued for a sufficient period to imply the owner intended to dedicate a public right of way. The route connects two public places or places to which the public regularly resort, and that use has followed a more or less consistent line.”
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