Section 7
Stopping up and diversions
7.1: Closure
David Braham Q.C.
Law Report. The Divisional Court quashed
stopping up orders made under s.116 of the Highways Act 1980 on the ground that the
notices of the intended application did not comply with the statutory requirements for the
reasons reported on pages 3-4. The third point raised by the appeal is one of more general
importance and goes to the matters upon which the magistrates have to be satisfied before
they can come to a decision to stop up a public right of way. That turns on the meaning
“unnecessary" in s.116: questions of “expediency” are irrelevant. The
way should be unnecessary for the sort of purposes for which the justices would reasonably
expect the public to use that particular way. The absence of an alternative route was of
critical importance to the question as to whether or not the existing routes were
unnecessary.
C. Willmore LL.B. Barrister
In Ramblers Association v Kent County Council rights of way crossed military land and
were closed for some 280 days a year whilst the land was used as a firing range. The ways
were used, albeit to a limited extent, by the public. The Ministry of Defence was willing
to allow use of a military path as an alternative, but only on a permissive basis, with no
undertaking as to their continued availability. Woolf L.J. considered the permissive use
of military tracks could not be regarded as a satisfactory alternative route for the
public rights of way. The Divisional Court set aside the closure order primarily because
of a failure to fully meet the procedural notice requirements. In doing so the court
considered two issues arising under s.116 of the Highways Act 1980:-
i) The meaning of ‘unnecessary’.
(ii) The nature of the notice provisions and the effects of
non-compliance.
Mark Heath LL.B. Solicitor
The unique s.116 procedure for stopping up or diverting highways by way of an
application before the Magistrates' Court contains a number of pitfalls for the unwary.
The legal grounds for such applications need clearly to be understood if they are to
succeed, and the procedural requirements must be strictly complied with. Both aspects of
the process are considered here, along with general guidelines for 'good practice' in the
field.
R. Langham, Barrister
The implications of the provisions of s.53 of the Countryside and Rights of Way Act
2000 are discussed. That section attaches a completely new significance to errors in and
omissions from a definitive map. It will raise interesting issues as to the date of
dedication (or deemed dedication) of some long-standing public paths whose origin is now
obscure, and as to the relevance of the fact that an extinguished highway was in regular
use by the public at the cut-off date.
David Braham Q.C.
Case Note.
The approach to be adopted by a highway authority when considering a request under
s.117 of the Highways Act 1980.
Philip Petchey, Barrister
A case note
The Court of Appeal addressed the circumstances in which the existence of a public path
creation agreement made under s.25 of the Highways Act 1980 may be taken into account when
considering whether or not to confirm an extinguishment order made under s.118 of that
Act.
Rowena Meager, Barrister, Lecturer in Law, New College, Oxford
A case note.
The judgment in this case addressed questions concerning the proper application of s.67 of
the Natural Environment and Rural Communities Act 2006 (“the NERC Act”) and the
significance of the requirements set out in Schedule 14 to the Wildlife and Countryside
Act 1981 (“the 1981 Act”) .
Ross Crail, Barrister
A case note
The operation of the exemptions from extinguishment of public rights of way for
mechanically propelled vehicles contained in s.67(3) of the Natural Environment and Rural
Communities Act 2006 has been reassessed on appeal.
Ross Crail, Barrister
The highway authorities’ powers to counter criminal and anti-social behaviour
emanating from highways for which they are responsible are addressed, with special
reference to the decisions of the High Court in December 2007 and April 2008.
Raymond Duddy, B.A. (Oxon), B.C.L.
In this statutory appeal against an Inspector’s decision to confirm an order
reclassifying as a byway open to all traffic a way which was shown in the definitive map
as a restricted byway, the issue was whether s.67 of the Natural Environment and Rural
Communities Act 2006 had extinguished all public rights of way for mechanically propelled
vehicles over this route, or whether those rights were preserved by s.67(3)(a) or
s.63(3)(b). That, in turn, was seen to depend on whether defects in the original
application made under s.53(5) of the Wildlife and Countryside Act 1981 were cured by
subsequent correspondence
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