Boundary fence issues

Hagar

In the course of having a new house built on a site I came up against a problem with the fence adjoining the public road. The road is quite a narrow country lane. Roscommon CoCo stipulated that the fence must be at least X metres from the imaginary centre line of the road. I can't remember the exact figure. Therefore about almost 2 metres of my property for a length of 85 metres was outside the fence. This raises a couple of questions in my mind.

Does my fence now constitute the border of my property?

If so, is the council effectively forcing a compulsory purchase from me for future road widening without making any payment for the strip of land?

If not, am I being forced to allow a public right of way across my property as I cannot stop people walking along the strip outside the fence?
What has happened to my rights to forbid trespass on my property?

What is my liability for someone tripping and hurting themselves on this strip of land which I can't now keep people off?

People started to park there, on the strip of land, but there was no way to stop them as a result of the council's policy on the fence. There has to be a serious insurance issue if sombody is hurt as a result of this illegal parking.

I'm not actually looking for legal advice as I have since sold the property and it's now not my problem anymore. I can only assume the regs are being enforced on everyone in the county and possibly in other counties.

Isn't this a terrible liberty to take with private property?

dermot_sheehan

Hagar wrote:

In the course of having a new house built on a site I came up against a problem with the fence adjoining the public road. The road is quite a narrow country lane. Roscommon CoCo stipulated that the fence must be at least X metres from the imaginary centre line of the road. I can't remember the exact figure. Therefore about almost 2 metres of my property for a length of 85 metres was outside the fence. This raises a couple of questions in my mind.

Does my fence now constitute the border of my property?

You own and always have owned up until the centre dividing line under a public right away. Even if it wasn't conveyed in the deeds, it is presumed that ownership under a public right of way rests with the adjoining land owners.

Because of the public right of way, it's hard to think if there's anything you can do with your property rights since you can't interfere with the right of way. Probably the most important is if the Roads Authority (for local roads the county council) ever extinguishes the right of way, the land would be yours

If so, is the council effectively forcing a compulsory purchase from me for future road widening without making any payment for the strip of land?

If not, am I being forced to allow a public right of way across my property as I cannot stop people walking along the strip outside the fence?
What has happened to my rights to forbid trespass on my property?

It really depends on how wide the public right of way was in the dedication creating it. As Roads Authority the council has responsibility for the upkeep of the public right of way. As I said earlier the council isn't acquiring property (since you still own it), merely enforcing a public right that was there when you bought the land.

With regard to the planning condition that the fence be so far back, there are two possibilites. One is that the Public right of way extends that far and the council using it's Roads Authority Hat is doing its duty in keeping the right of way clear.

The other is that the right of way doesn't extend that far, in which case the council in imposing the conditions is wearing its hat as planning authority. As a planning authority it has the power to impose a condition under s. 24 of Schedule V of the Planning and Development Act 2000 http://www.irishstatutebook.ie/gen522000a.html to preserve a public right of way, and s. 9 to limit the consequences of a serious accident.

What is my liability for someone tripping and hurting themselves on this strip of land which I can't now keep people off?

People started to park there, on the strip of land, but there was no way to stop them as a result of the council's policy on the fence. There has to be a serious insurance issue if sombody is hurt as a result of this illegal parking.

Your liability is the same as its always been and the same as any property owner whose property adjoins a public right of way. I can't imagine you ever being held liable even though under legal theory you own the land under the public right of way.

It's the duty of the Roads Authority to upkeep the road. Under the Occupiers Liability Act 1995 you only owe the common duty of care to invitees to your property (persons there with your permission). I have not ever heard of an adjoining property owner to a public right of way being sued for actions on it.

Hagar

Thanks for that reply. I can grasp what you are saying but it still feels like sleight of hand land acquisition. Next time the council tar the road they will tar it up to the fence and then it will become a boundary fence, maybe I'm wrong saying that but that's how it's shaping up. What rights will I be able to exercise over that strip of land? If I can't exercise rights it's no longer mine really is it?

dermot_sheehan

Well if when the public right of way was dedicated (many many years ago) and it was expressed as so many feet wide, then they are perfectly entitled to tar up until that point.

If however the land is not part of the right of way, they are just using their planning powers to keep your fence back for public safety. They can not tar up to the fence in this scenerio since the right of way doesn't extend this far. This seems like the more likely scenerio IMO since it's unlikely the original roads authority would have permitted fenced land to intrude on to the right of way. In addition the local authority is using its planning powers. If the original fence was encroaching on to the right of was it wouldn't have to wait until you applied for planning permission for something, it could simply have it removed using its powers under the Roads Act 1993.

The problem is proving how wide the right of way was in the original dedication. This was likely done hundreds of years ago. If however you can prove they are tarring part of your land not subject to the right of way you can sue for trespass.

Hagar

Surely the searches/land registry etc at the time of purchase would have shown the extent of the property? Why would I be allowed purchase, and have to pay for, land that wasn't available for purchase? Did the seller sell me something that wasn't his to sell?

Victor

Note a plaintiff can take a legal presumption that unenclosed lands adjacent to a public right of way are part of the right of way.

That is, if someone trips on a section of footpath that is actually on private property, but looks like public property, they can* sue the council.


* Other factors aside.