Section 4
Interference with highways
Introduction
Professor R. Buckley M.A., D Phil. M.A., D.Phil., Barrister, Professor
of Law, University of Reading.
4.1: Obstructions
Francois Barker, LL.B., Lecturer in Law, University of Hull
In Durham County Council v Scott, the Divisional Court heard an appeal by way of case
stated against the decision of Teesdale and Wear Valley justices, who dismissed an
information brought by the appellants, Durham County Council, against the respondent,
Leslie Scott, to the effect that he obstructed a bridleway contrary to section 137(1) of
the Highways Act 1980.The Court upheld the appeal concluding that the gates which had been
put across the bridleway substantially and permanently prevented the public from having
free access over the whole width of the bridleway.
Francois Barker Barker, LL.B., Lecturer in Law, University of Hull
Most of the powers and duties necessary to ensure that public rights of way are kept
open and protected are vested in local authorities. However the authorities' inability or
unwillingness to exercise these powers and discharge these duties makes it necessary to
consider in detail the legal and practical action which can be taken by individuals and
user groups to alleviate the problems caused by obstructions and nuisances over highways,
even though such action is largely unsatisfactory.
Francois Barker Barker, LL.B., Lecturer in Law, University of Hull
S.147 of the Highways Act 1980 is a provision of considerable potential use to local
authorities, allowing them to authorize the erection of "stiles, gates or other
works" on public footpaths or bridleways in certain circumstances and subject to
certain conditions. It is an attempt to enable local authorities to reconcile the
apparently conflicting interests of farmers and path users by providing for the statutory
authorization of structures designed both to assist efficient agriculture by preventing
the escape of livestock, and also to allow public passage to continue along rights of way
without undue interference.
S.147 appears relatively straightforward at first sight, but closer examination reveals a
number of interesting issues worthy of discussion. Of particular significance is whether
the section can be used to sanction the erection of side stiles, kissing gates or other
such structures where it is wished to lock a "main" gate across a public path.
J.J. Pearlman, Godlove Pearlman, Solicitors
The statutory provisions relating to obstructions and disturbance of rights of way are
many and various. Here ss.131A, 134, 137 and 137A of the Highways Act 1980 (as amended)
are considered in detail, and practical advice is given to secure that prosecutions for
the various offences created by the sections go smoothly.
Francois Barker Barker, LL.B., Lecturer in Law, University of Hull
S.147(1) of the Highways Act 1980 allows a competent authority to authorise the
erection of "stiles, gates or other works" on public paths over
"agricultural land, or land which is being brought into use for agriculture".
This article builds upon an earlier paper on the structures authorised by s.147 1 by
considering further the scope of s.147 with respect to the environment in which it
operates. The existence of "agricultural land" is an essential pre-requisite for
theoperation of the section, and the nature and meaning ascribed to this term will
determine, to a large degree, the extent of the s.147 power to authorise the erection of
structures across public paths. [S.147 does not apply to carriageroads, byways open to all
traffic or roads used as public paths.]
Professor Emeritus Keith Davies J.P., M.A., LL.M., Barrister.
A case note
Two vendors of roast chestnuts had their braziers impounded by Westminster City Council on
the ground that these were "unlawfully deposited on the highway" so as to
constitute "a danger ... to users of the highway" (in this case pedestrians)
under s.149(2) of the Highways Act 1980. The vendors sued for damages and return of their
braziers, and applied for an interlocutory order that the braziers be returned pending the
outcome of the case. The Court of Appeal held, reversing the judgment at first instance on
the interlocutory claim, that the braziers had been "deposited" so as to cause a
danger and a nuisance. Therefore the Council's act was lawful under s.149(2) and the
interlocutory application failed.
Bruce Monnington, B.A.(Hons), M.A., Barrister
The question frequently arises as to whether the owner of land over which a right of
way exists is entitled to place a gate, or any like feature, on or across it. The purpose
for this may vary considerably, from security concerns to the need to contain livestock.
Professor Emeritus Keith Davies J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
Disputes over land boundaries of all kinds, including rights of way boundaries,
"tend always to compel", as an appeal judge has recently said, "some
unreasonable and extravagant display of unneighbourly behaviour which profits no-one but
the lawyers". If a boundary is marked by a hedge and a ditch there is an
old-established common law presumption of fact that the edge of the ditch furthest from
the hedge is the actual boundary. Yet this can be displaced by contrary evidence. Judges
today tend to favour adopting the Ordnance Survey's principle that if a field boundary is
marked on the map by a hedge it runs down the middle of the hedge, regardless of any
ditch: yet how far this can be treated as "evidence" may be debatable if other
facts point in a different direction. The uncertainty may have to wait to be resolved by
the House of Lords. What is (fortunately) more certain, as another appeal judge has said,
is that if an owner's land "abuts on a right of way, building right up to the edge of
his land does not [per se] interfere with the right of way". Presumably this applies
to boundaries in general. So long as we know for certain where our boundary is, we can, in
principle, build right up to it.
Colin Braham, M.A., M.Sc., Barrister
It was argued in Westley v. Hertfordshire County Council that the analysis of previous
decisions enabled a much wider ambit than that of the Public Health Acts to be given to
the Environmental Protection Act 1990 allowing the nuisance of obstruction to a highway to
be included in the offence of statutory nuisance. The argument was not accepted. Where the
obstruction has been caused by vegetation such as to exclude relief under s.56 of the
Highways Act 1980, it is suggested that the remedy may be to challenge the authority by
way of judicial review or by way of injunction proceedings.
Alan Woods, B.Sc., Ph.D., MCIWEM, Research Associate, Countryside and Community
Research Unit, University of Gloucestershire
The introduction of a new structure for agricultural support from 2005 represents a
further stage in the integration of access policy into agricultural policy at both
European and national levels. All land managers in England who wish to receive
agricultural support payments will now have to comply with standards relating specifically
to rights of way, as also will those who wish to receive further incentives for
environmental land management.
These developments provide important new opportunities to improve compliance by land
managers with the law relating to public rights of way.
Stephen Schaw Miller, Barrister
The highway authority has powers to deal with an unlawful obstruction of a highway.
Ss.130A to 130D of the Highways Act 1980 provide a new method enabling a private person to
secure the exercise of those powers by the authority to remove the obstruction.
This article explains what the new method is and briefly compares it with applications for
judicial review of decisions by authorities not to exercise their powers.
Nadia Nath-Varma LL.B., Rights of Way Policy Officer for the Ramblers’
Association
Highway authorities need to bear in mind wildlife conservation laws when carrying out
their duties to keep highways free from obstructions. The inter-relation between duties
which might be seen to conflict with one another is analysed.
Stephen Schaw Miller, Barrister
A case note
In this case an application to the magistrates’ court under s.130B of the Highways
Act 1980 was reviewed by the Crown Court by way of re-hearing. The applicant invited the
Court to conclude that it would suffice if the order required that most, but not the
whole, of the obstruction be removed and, because of the particular facts and history of
the case, the Court adopted that course.
Alan Woods, B.Sc., Ph.D., MCIWEM Research Associate, Countryside and Community
Research Institute, University of Gloucestershire
All farmers in England who receive support payments under the Common Agricultural
Policy must comply with specific standards relating to public rights of way. These
requirements were recently challenged in the European Court of Justice, which ruled that
the existing provisions are lawful and that no discrimination arises. The case reaffirms
an important element in the range of measures available to improve compliance by farmers
with the law relating to public rights of way. This paper reviews the background to the
case, summarises the judgment, and discusses some of the issues which arise.
George Laurence QC
Sections 130A-130D Highways Act 1980 have been on the statute book for 10 years.
Individuals who invoke these provisions embark on a potentially hazardous enterprise. Some
of the pitfalls are considered in the light of the Ernstbrunner case.
George Laurence QC
The High Court has affirmed, in exemplary detail, the full implications
of ss.130A to 130D of the Highways Act 1980 for those who obstruct minor highways.
Highways authorities will from now on have no justification for not taking action to
remove obstructions from the highway, as explained in the recent Kidner decision.
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