If you've reported an obstruction on a right of way to the relevant highway authority but no action has been taken, it might be time to consider using the law to formally request the removal of the obstruction.
Highway authorities (i.e. county councils and unitary authorities) have a legal duty to remove obstructions which prevent the public from using rights of way in their area. If a highway authority fails to comply with this duty a member of the public can apply for an order to force it to do so.
Here we explain how the process works and in what circumstances it can be used.
Obstructions are a huge problem on the rights of way network. Highway authorities have a duty to prevent the obstruction of highways, including rights of way, and they have considerable powers to deal with obstructions, including prosecuting the person(s) responsible.
The problem is that some highway authorities fail to take action on obstructions. To tackle this issue the Government amended the law to allow any member of the public to apply for an order to force a local authority to remove an obstruction. This provision appears as sections 130A - 130D of the Highways Act 1980.
The procedure can only be used if the obstruction is without lawful authority and is either:
- a structure (a machine, pump, post or other object such as a wall or fence) or
- anything deposited on the highway which constitutes a nuisance or
- comprises overhanging vegetation
Also, it can only be used if the path is either a footpath, bridleway, or restricted byway, or a way show on the definitive map as a restricted byway or byway open to all trafic.
The procedure cannot be used if:
- the obstructed path is in an Inner London Borough or
- the obstruction is part of a building (temporary or permanent), works for the construction of a building, or a structure (such as a tent or caravan designed for human habitation) or
- the path is more correctly described as 'out of repair' (a path is 'out of repair' if the surface is damaged)
The section 130(A-D) procedure is made up of four forms, some of which are filled in by the applicant and some of which are completed by the local authority. The forms are exchanged according to the following timetable:
s130(A-D) flow chart (pdf)
The local authority is likely to take prompt action to remove the obstruction if this procedure is used because they will be aware that it allows the applicant to apply for a magistrates' order if the obstruction has not been removed within two months (but note that you are not obliged to take a case to the magistrates' court and that in most cases highway authorities will take action to clear the obstruction without the need for legal action). The highway authority is obliged to treat the identity of applicants confidentially at this stage.
If you do procede to court then you must be aware of the following. You will have to be able to show the court that:
- the obstruction is of a kind that is covered by this provision
- the highway is of a status to which the provision applies
- the obstruction 'significantly interferes' with public rights over the path
Because of the risk of costs we strongly advise people considering an application to the magistrates' court to take legal advice beforehand.
In a court case in 2010, Herrick v Kidner and Somerset County Council, the judge made some important comments on the interpretation of the phrase 'significantly interferes'. He said that 'any structure erected within the legal extent of the footpath, and which prevents public passage or the enjoyment of amenity rights over the area of its footprint, significantly interferes with the exercise of public rights of way. Highway authorities which refuse to take action to secure the removal of such structures may be subject to an order under section 130B'. He also said that in his view 'interfere [with the right of passage] means to get in the way of, in other words, the structure must impede the right of passage or prejudice other amenity rights, either generally or in particular. There is no reason to confine interference to physical interference. An object can get in the way of right of passage or other amenity rights because of its psychological impact'.
What this means is that the whole width of the public highway should be available for public use and that a structure erected on the highway, for example, gates of the kind which suggest you are entering a private drive and which act as a psychological deterrent, could be the subject of an order under this provision. Whilst in practice it is open for a Court to find that in any particular circumstance a particular obstruction does not constitute significant interference, this judgement should give authorities a new incentive and a new confidence to deal with obstructions. If they do not do so enforcement of that duty, through the courts, is going to be the likely outcome.
However, magistrates will not make an order if the highway authority is able to satisfy the court that:
- the status of a path as a highway to which the provision applies is seriously disputed
- that, for some reason, the authority has no particular duty to remove that particular obstruction
- that arrangements have already been made to secure the removal of the obstruction within a reasonable time (and that period can take account of the number and type of other obstructions with which the authority must deal)
It should be noted that although there is no charge for initiating this procedure and serving the first notice, there are charges associated with bringing an action in a magistrates' court and, if your application is dismissed, you may be liable for costs. Because of the risk of costs we strongly advise people considering an application to the magistrates' court to take legal advice beforehand.
The forms which make up the s130(A-D) procedure can be downloaded here:
Form 1, Form 2, Form 3, Form 4, Form 5
The government produces guidance for local authorities on the use of section 130(A-D).
