Obstructions
What is an obstruction?
Anything which prevents the convenient use of a way by walkers or riders may be an unlawful obstruction; anything which substantially prevents the public from having free access over the whole of the highway – including any footpath or bridleway – may be an unlawful obstruction if not purely temporary in nature.
A building built on the line of a highway is an obstruction; a heap of manure dumped on a path is an obstruction; barbed wire placed directly across a path is an obstruction; barbed wire on a stile placed in such a way as to make use of the stile difficult or dangerous may also be an obstruction. Other things that can count as obstruction are:
- Locking a gate, or securing it with string or rope so that the fastening cannot be readily undone,
- Erecting a stile across the gap in a ‘squeezer’ stile,
- Putting an electric fence across the line of a path, or
- Extending the boundary of a garden over a path.
Whether the facts of any particular case amount to an unlawful obstruction is, in the end, a matter for a court to decide, taking into account all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and whether it does in fact cause actual obstruction. For something to count as an obstruction there does not have to be a complete blockage of the highway. (Dense undergrowth, obstructive though it may be, is not normally treated as an obstruction, but is dealt with under path maintenance.)
A public nuisance and statutory offence
An obstruction of the sort detailed above is a form of public nuisance – a crime at common law. Obstruction of the highway is also a crime by statute, since section 137 of the Highways Act 1980 makes it an offence for any person, without lawful authority or excuse, to wilfully obstruct the free passage along a highway. The offence is punishable by a fine of up to 3 on the standard scale, currently £1000.
New legislation on obstructions
The courts’ powers to deal with obstructions were strengthened by the Countryside and Rights of Way Act 2000, in two ways.
First, it added new section 137ZA to the Highways Act 1980, which gives the courts power to order anyone convicted of an offence under section 137 to remove the obstruction. Failure to comply is a second offence punishable by a fine of up to £5000; and failure to comply with that is a third offence punishable by a fine of up to £250 per day.
Secondly, CRWA 2000 added further new sections, section 130A–130C, into the 1980 Act, which empowers any person to serve notice on the highway authority requiring them to secure the removal of an obstruction. If after two months the obstruction has not been dealt with to the complainant’s satisfaction, the complainant, having notified the highway authority of his intention to do so, may apply to the magistrates’ court for an order requiring the highway authority to take appropriate action. If satisfied that certain statutory criteria are met, the court may order the removal of the obstruction within a reasonable time fixed by the court.
For details of how to use section 130A - 130C and make a formal request for the removal of an obstruction please click here.
Duties of highway authorities in relation to obstructions
Highway authorities – county councils and unitary authorities – are under a duty to seek, prevent and remove obstructions at common law; moreover, statute law gives them two general duties:
- Section 130(1) of the Highways Act 1980 gives highway authorities the duty to assert and protect the rights of the public to the use and enjoyment of the highways for which they are the highway authority.
- Section 130(3) requires them to prevent as far as possible the stopping-up or obstruction of those highways.