Bleachgreen decision due on June 22

On Wednesday of last week, after a full day's hearing, involving residents, an anglers' representative, and an official from Ardmore Cricket Club as well as a Council official and Samuel Condit, judgment on the case was deferred to allow the District Judge hearing it to visit the site and to allow lodgement of final submissions in writing.

The case was heard before District Judge Rodgers in Court 2 at the Courthouse, with the District Council represented by Brett Lockhart, QC and Mark Lennon, BL, instructed by Council solicitor Damien McMahon, while Samuel and Madeline Condit were represented by Mark Orr, QC and Richard Shields, BL, instructed by Ciaran Hampson, solicitor of Campbell Fitzpatrick.

In his opening remarks, Mr Lockhart QC said on December 15 last year the City Council passed a resolution asserting Green Road as a public right of way in accordance with Article 3 of the Access to the Countryside legislation of 1993.

Using maps to locate the disputed route, which includes an old iron bridge over the River Faughan, Mr Lockhart pointed out that the next nearest crossing points on the river were 2.33km away in Drumahoe or 6.5km away at Burntollet Bridge.

"This means to move from Ardmore in the direction of Drumahoe would be a significant detour," Mr Lockhart said, adding: "At the Glenshane Road point there is a property at the corner which is the property of Mr and Mrs Condit... Green Road is 283m long and goes down to the River Faughan. That is the area that is in dispute in these proceedings. The owners of the other portion of road accept there is a public right of way."

He said that the Condits maintained that the route was a private road and last year brought an action against O'Kane and McLaughlin to Court seeking to have it asserted as a private right of way, whereas O'Kane and McLaughlin, the successors in title to the other property, wanted the route declared a public right of way. He said the successors in title wanted to develop the area for housing and had ultimately agreed to take the bridge down. Subsequently the Council stepped in, deciding to seek a declaration that the disputed section of road was a public right of way. The Condits then removed the obstruction sufficiently to allow pedestrians to have access to and cross the bridge.

Mr Lockhart also said in 2005 the 85-year access lease expired and it was back in 1968 or 1970 that the works ceased to work. Up to that point there had been a tradition of once a year putting a chain across the bridge as a step to prevent the route becoming a public right of way, but that practice had stopped when the bleach works ended.

"From that date there was never any attempt at blocking the access at any stage. You will hear a plethora of evidence from locals who have used the bridge and access to the Glenshane Road through the Green Road throughout their lifetime," he said.

In a potted history of the access route, punctuated with map references and quotes from relevant legislation, Mr Lockhart said there had been a crossing point over the river in that general area since 1831, and the iron bridge had been constructed in 1920, adding that there had been a crossing point across the Faughan nearly 100 years before that date.

The first witness to give evidence was Robert Brolly, from Ardmore Cricket Club, a retired 81-year-old farmer, who said for the past 40 years the Green Road and bridge had been used to access the Cricket Club which was located not 200 yards from the bridge.

He said he had never known the bridge to be obstructed and believed it to be a 'common road', adding that he had never been told he could not use the road or bridge and on occasions so many people had attended cricket matches on foot and in cars that the police had come out to undertake traffic control.

He said he recalled the practice by Carey McClellan of putting a chain across the road every year, but said that practice stopped when the Bleachgreen folded 40 years ago.

In cross examination by Mr Orr Mr Brolly said he had never had to seek permission from the previous owner, Mr Mooney to use the Green Road, adding that the gentleman had been a member of the Cricket Club and a former President.

Mr Orr: "But nobody gave express permission to you?"

Mr Brolly: "We did not have to ask. It was a normal thing."

Subsequent witness, Gerard Brolly, a past pupil of Glendermott Primary School, said he walked to school using the Green Road as a boy and had also never been told not to use the road and four or five other families also used the road to get to school. He also gave corroborative evidence about the use of Green Road by members of the cricket club and visitors.

In cross examination he said he had used the road daily and had no memory of Carey McClellan using a chain to maintain private access status.

Hugh O'Neill, a 69-year-old retired joiner and native of Ardmore gave corroborative evidence about using Green Road, while Gerry Quinn, the Secretary of River Faughan Anglers Ltd told the hearing that the club had 780 members this year and not only did the members enjoy full access rights to the river and Green Road, he had been driving down the road for 30 years.

He said anglers followed fish up the Faughan River and he also knew that cricketers, walkers, nature lovers and other interested groups used the road and none had been stopped before.

He said blockage of the bridge would cause considerable problems for the river watchers employed by the club as they would not be able to carry out their duties effectively of river patrolling and preventing nets being used by poachers. He stressed the need for vehicular access as not being able to use their vehicles meant the three-man team of watchers would lose their ability to use radio contact.

In cross examination Mr Quinn said the club had a legal right to have access to the river as they rented the lease owned by the Irish Society.

Retired baker, Tommy Curley, aged 72, who has lived in Ardmore for over 50 years corroborated previous evidence, as did Marjorie Donaghy (formerly Ward), who was born and reared on the Bleachgreen, who said the Green Road led to an area known as the holly plantation which she had visited on numerous occasions as a child and adult, as did others. She said it was accessed by going over the bridge and along the path to the side. She described the plantation as an area of outstanding natural beauty and stressed its importance in terms of its flora and fauna adding that it also contained a secoya tree. She said the only access to the plantation was via Green Road and she had been visiting the area for over 60 years.

In cross examination she said her parents had been tenants of a house owned by the bleach works until 1981; like other witnesses she said she had never been aware of private access signage nor had she ever been told she needed permission to access the plantation or use the Green Road or bridge.

Margaret Gallagher, aged 68, a retired teacher, gave evidence of taking groups of schoolchildren to the plantation several times annually over many years and also said the Green Road was also used by bread van delivery men, coal merchants, milkmen and others.

Evidence from Bridie Wilson, aged 88, was read to the court and said she needed to use Green Road to access facilities such as the Post Office as she had no access to a vehicle.

The final witness for the Council was the Countryside Access Officer Dr William Burke, who is charged with implementing the Access to the Countryside Order of 1983.

Using maps to chart the history of the access and crossing point of the Faughan River at that point, he said Ordnance Survey maps clearly showed a bridge in the area from 1881 to the present day, and the Plaintiff's case was based on the maps and on the oral evidence presented by the witnesses.

The previous wooden bridge was replaced by a metal one which was put in place at the time when the US Army was based in Ardmore and it was this bridge which was still in existence, he said. He added that, in addition, he had spoken to the Northern Ireland Environment Agency and other Access Officers in the Province about the quality of evidence he had on Green Road and the bridge, and they had confirmed his findings were sufficient to prove a public right of way.

He said the Council received 14 completed survey forms back from members of the public and at the end of his evidence he revealed that there were 1,344 signatures on a petition which was submitted opposing the blockage of Green Road and the bridge.

In cross-examination Dr Burke maintained his assertion that his evidence supported an assertion of public right of way and added that at no time when he had been out in the area had he seen signage claiming it was private land.

At the start of the defence case written evidence from the previous landowner Mr Mooney, was submitted which Mr Orr said, showed that Mr Mooney had never expressly given permission to people to use 'the laneway'.

The sole witness to give oral evidence for the defence was Samuel Condit, who has lived at 101 Glenshane Road for the past 10 years.

Asked if he had ever given permission, or his wife had ever given permission for anyone to "go up and down the lane", he replied 'No'.

In evidence he said the decision concerning the settlement with O'Kane McLaughlin involved the removal of the bridge.

He said his aim was to bring the land he had paid for into his ownership under the terms of the lease, with the only people having access rights being anglers exercising their rights to fish the Faughan.

Mr Orr: "So if anyone wanted to access the area of natural beauty only with your permission could they do that?"

Mr Condit: "That's right."

Mr Condit went on to tell the Court that the only rights he knew about were the fishing rights as outlined on the lease, but when asked about the bridge in existence since 1831 the witness replied "I really cannot say".

In cross examination by Mr Lockhart, Mr Condit said that while he had relatives living in the area and he had some knowledge of the area he was not intimately acquainted with it.

It was put to Mr Condit that his actions, if successful, would prevent people from accessing the area of natural beauty, and when asked if he knew about Mr Mooney's patronage of Ardmore Cricket Club, the witness said he did so only through evidence given in court.

He told the court he had never been in Ardmore Cricket Club and when he had bought the land from Mr Mooney in 1997 it included permission to access half-way down the lane but no further. He said he could not comment on other witnesses' assertions that there was not signage in the area claiming it was privately owned land they were using, but at the time Mr Mooney sold him the second piece of land he had expressly been told it was a private road and he went on to say that he had put up signs saying 'private'.

Mr Lockhart: "One way to stop a right of way is to put up a barrier and make it clear to everyone this is not a public right of way. From 1970 that never happened and people were never stopped...The point is not you or your predecessors in title blocking it, it was the people on the other side who abdicated responsibility."

Mr Condit: "I put private signs up which was the appropriate thing to do. The others did not want to talk, they just wanted to argue."

It was put to Mr Condit that the issue of asserting a private right of way took on importance when it became apparent to him that O'Kane and McLaughlin were interested in developing land on the Ardmore side of the bridge for housing, which would have meant vehicular access would have become a 'very real concern' to him. Asked if he agreed with that, Mr Condit said 'No'.

Asked if he thought there was a major difference between vehicles using the route and bridge and pedestrians walking along both, Mr Condit said "of course there is".

Mr Lockhart: "One could perhaps say there is a greater concern about vehicles?"

Mr Condit: "Undoubtedly".

After extensive cross examination involving his previous interaction with the other landowners, Mr Condit said he believed the lane was not fit for either pedestrians or vehicles to use .

Asked what he thought about the fact that evidence showed a bridge was in existence across the river since 1831, Mr Condit replied: "I am not a legal expert".

Asked about his attitude to the rights of the anglers, he agreed they had access rights to the banks of the river.

Mr Lockhart: "All 750 anglers."

Mr Condit: "Yes, if they have a licence."

Mr Lockhart: "If they do not have a licence?"

Mr Condit: "I have the right to stop and report them."

When it was put to Mr Condit that he was someone who had only moved into the area very recently, within the past 10 years, he refuted it saying he had lived in the Waterside for 34 years. He agreed that in the past year he had taken various steps to try and block the road, adding that he had not blocked the road at the Glenshane side as he had to have access to his own house.

As Mr Condit rose to leave the witness box he was asked by District judge Rodgers if he had no problems with pedestrian access, to which he replied "for fishermen".

Accepting bundles of legal documents and affidavits, District Judge Rodgers adjourned the case so that he could visit the Green Road for himself in the company of both solicitors.

The case will resume on June 22 at Londonderry Courthouse.