Anything which prevents the convenient use of a right of way and prevents the public from having free access over the whole of the way may be an unlawful obstruction.
The following things could count as obstructions: a building built on the line of a way; barbed wire placed across a way; the locking of a gate across a way; the erection of a stile where there was previously a gap; or the growing of crops on a way. Please note that dense undergrowth, obstructive though it may be, is not normally treated as an obstruction, but is dealt with under path maintenance.
Whether there is an unlawful obstruction is a matter to be decided 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 right of way.
An obstruction is a public nuisance – a crime at common law. It's 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 term 'highway' includes all rights of way). The offence is punishable by a fine of up to £1000, and the courts have the power to order anyone convicted to remove the obstruction. Failure to comply with such an order 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.
Highway authorities – county councils and unitary authorities – are under a duty to 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.
Any person may require a highway authority to comply with the above duties by serving a notice under section 130A–130C of the 1980 Act. The procedure is explained in more detail here.
