Peter Kidner of the Open Spaces Society has won a battle in the cause of removing unlawful obstructions from paths.
We all know that rights of way sections sometimes are too cosy by half to landowners, for example the rights of way officers' association, IPROW, recently (March 2009) said that their working relationships with landowners are fundamental to rights of way work. In Hertfordshire it was standard practice to take a new officer round to meet his or her landowners, no suggestion that they should do the same with their user groups. BADFA explicitly asked for the latter and was refused.
So how do landowners or others who obstruct paths with barbed wire or unauthorised stiles or gates or piles of rubbish get dealt with. Well it is of course the County Council's responsibility. They have a duty to keep paths clear just as they have for roads. Parliament recognised they might not always do their duty and wrote S56 of the Highways Act to allow a formal complaint that a path is 'out of repair' to be made and if County don't deal with it then the complainer can go to the magistrates for an order instructing County to get on with it. BADFA has used this facility, not needing yet to go to court. But the courts decided that 'out of repair' had a very narrow meaning and excluded any form of obstruction which was a deliberate structural obstruction. This left the public with little chance of remedying obstructions.
Years went by and the cosy officer-landowner relationship continued and few but the worst obstructions got dealt with. Then hopes were raised when Section 130A was added to the Highways Act at the turn of the century (the words are in the CROW Act 2000 section 63). But it soon turned out that whilst the new legislation was a useful tool for turning gross and blatant obstructions into just passable ones, it was not being used to remedy lesser obstructions. It turned on the meaning of the words that the magistrates need to be satisfied of "that the obstruction significantly interferes with the exercise of public rights of way over that way". We had thought that would mean what it meant in well known law cases under other parts of highway law, that is that unless the obstruction was trivial, then it was an offence and must be removed. The magistrates ignored that and took the 'common sense' view of the meaning and if people could get through say a narrow gap then they refused to enforce against an illegal fence across the rest of the path.
Now a higher court has ruled what BADFA believed was correct all along, that 'significantly interferes' should be looked at legally, not loosely. We are very grateful to Peter Kidner to have taken this case on.
Fortunately, as it turned out, the landowner, Mr Herrick, appealed and since it seems there is virtually no chance of further appeal, the result not only stands in this case but has laid down the rules at a very high level for all other cases under that s130A section of the act.
The High Court has ruled that the gates must be removed in their entirety. It is Somerset County Council’s duty to ensure that this happens.
Said Mr Justice Cranston: ‘in my judgment the public is entitled to use and to enjoy everything which is in law part of a footpath…the Barcroft Hall gateway prevented public passage and the enjoyment of amenity rights over footpath Y24/10’. He also said: ‘There is no reason to confine interference to physical interference. An object can get in the way of the right of passage or other amenity rights because of its psychological impact.’ He dismissed Brian Herrick’s appeal.
The case can be read at here and some broad details are available at the OSS site here