BADFA has over the years had two overall gripes with the highway authority:
1. Not treating the HA80s130 statutory duty to assert and protect the public paths as an always present obligation permeating all their rights of way work..
2. Not using direct action (the common law right of abatement) when that would be quicker/easier/cheaper.
By direct action I mean physically intervening, themselves or by contractors, to remove obstructions or dangers.`
It is the second of these that is discussed here and on which views are welcome, though the first one has some relevance here.
A path was completely blocked just before Christmas 2002, see "Bride Street", and this has triggered a constructive dialogue with the authority which we hope will lead to change.
BADFA's view is that as statutory owners of the path, the authority has a common law right to remove obstructions and where exercising that right would be quicker/easier/cheaper then statutory process then they have a duty to do that rather than the slower/harder/more expensive statutory route.
Our authority is taking a view that seems to be mistaken.
1. They say that any common law right of abatement (eg removal of padlock or other obstruction) applies as much to individuals, such as you or I, as to the highway authority.
2. They say that in any event they should exercise the statutory powers (given by explicit statute) rather than any common law powers (non-statutory law) such as abatement.
The result is that they embark on a slower, more complicated, and more costly route than necessary or that, being mindful of the difficulties of that approach, they fail to act at all.
1. BADFA's understanding of common law abatement in the rights of way context, is that it broadly speaking refers to the removal of a state of affairs which interferes with public or private rights. Members of the public have quite limited rights of abatement on public paths, it must be immediately necessary to act, one must do the minimum damage consistent with proceeding along the path, and so on. The highway authority's officers also have these limited rights of abatement. But they have more:
a. By reason of common law generally.
b. By reason of ownership of the path.
Re a.: We believe that a highway authority has both the common law right and a duty to abate a nuisance and remove any obstruction interfering with free use of a highway. Bagshaw v. Buxton Local Board of Health and Reynolds v Presteign Urban District Council seem to support that view.
Re b.: We had understood that a highway authority, when it owns the path either as underlying landowner or as statutory owner under Highways Act 1980 s 263 (most public paths are so owned) has all the rights of abatement that any other landowner has. These go well beyond the very limited right of abatement that the general public has on public paths. They are identical to the power/right we all have to cut overhanging branches or underhanging roots from our neighbours' trees where these encroach on our property.
2. On the second question that highway authorities should exercise the statutory powers (given by explicit statute) rather than any common law powers (non-statutory law) such as abatement, a lot hinges on 'should'. My authority reads it as must. But the HA80s130 duty to assert and protect the rights of the public is just that, it doesn't proscribe how it should be fulfilled.. The case in point was a completely impassable path, with a locked gate and lots of barbed wire. Under common law it could have been opened for use in a few hours at zero cost to the highway authority using common law powers via one e-mail to us, their Parish Path Partner. Under statute law the process even if pursued actively was very likely to take at least two months before that path could be used by the public again, and to require substantial resources. Surely S130 requires that the quicker and cheaper route of common law be taken.
The above would doubtless be true even if S333 of the Highways Act did not exist. But it does exist. And this little noticed section spells out quite explicitly that common law remedies are in no way superseded just because of new statutory provisions in the Highways Act.
We understand that an explicit statute should generally be used in preference to a more general one, but even that is not 'always'. We have never heard of a similar legal dictum preferring statute law over common law, although that doesn't mean it doesn't exist. But even if there is some such preference, the existence of S333 surely prevents any dictum from being anything in the nature of a prohibition. We can see that statutory process would often be the preferred way. But where common law is quicker/easier/cheaper, is that not the route which ought to be followed?
Any views on this and on the abatement rights question above could help achieve change in our highway authority and perhaps then in others.