If you've reported an obstruction on a right of way to the relevant council but no action has been taken, it might be time to consider using the law to get the obstruction removed.
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. However, as well as having a duty to prevent the obstruction of highways, including rights of way, highway authorities have considerable powers to deal with obstructions, including prosecuting the person(s) responsible.
The problem is that some 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 a magistrates’ court order to force an 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:
Also, it can only be used if the path is either a footpath, bridleway, or restricted byway, or a way shown on the definitive map as a restricted byway or byway open to all traffic.
The procedure can’t be used if:
The procedure involves the exchange of up to four forms, some of which are filled in by the applicant (the person who is trying to get the obstruction removed) and some of which are completed by the local authority.
It’s important to note that use of the first stage of the procedure doesn’t mean that you’re obliged to take the case all the way to the magistrates' court. In most cases highway authorities will take action to clear the obstruction without the need for legal action. In all cases, the highway authority should explain what it proposes to do about the obstruction.
The forms are exchanged according to a specific timetable.
The local authority is likely to take prompt action to remove the obstruction if this procedure is used because they’ll be aware that it does pave the way for the applicant to apply for a court order if the obstruction has not been removed within two months. The highway authority is obliged to treat the identity of applicants confidentially at the initial stage.
If the obstruction isn’t removed, or if you’re otherwise unhappy with the course of action they propose to deal with it, then you have the option of seeking a court order. If you do proceed to court then you must be aware of the following. You will have to be able to show the court that:
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 words ‘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.’
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 right of way in question should be available for public use and that a structure erected on the highway, for example, gates which suggest you’re entering a private drive and which act as a psychological deterrent, could be the subject of an order under this legislation.
While in practice it’s open for a court to find that in any given case a particular obstruction is not a significant interference with the public’s use of a path, this judgment should give councils a new incentive and a new confidence to deal with obstructions.
Magistrates will not make an order if the council is able to show that:
It’s very important to note that although there’s no charge for initiating this procedure and serving the first notice on a council, there are significant 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.
These are the forms which make up the procedure:
Government advice can be found on the DEFRA website.
How do we deal with a PROW (in this case a Bridleway) that is "out of repair" because the landowner has changed the local planting and made the route a bog (thigh deep) and the county, although having the budget, won't repair because the landowner doesn't want it repaired!
You need to use the procedure set out at section 56 of the Highways Act 1980, which allows a member to seek to enforce a highway authority's duty to maintain any highway which is maintainable at public expense. Full details can be found here:http://www.ramblers.org.uk/go-walking/the-expert-view/rights-of-way-and-access-issues/how-to-get-a-path-properly-maintained.aspx
I know it is the ploughing season but, on a walk yesterday, several very large fields had been, or were being, ploughed across the marked public footpaths. Although there was no other physical obstruction, the ploughed surface was, in effect, impassable.I should point out that I have not been able to walk in the countryside for the last couple of years as I damaged my knee joint when attempting to cross such a ploughed field.Surely it is not above the whit of farmers to arrange the ploughing so that they do not destroy the path? I noticed yesterday that, in the intervening two years since I last walked there, the paths have become almost unused with undergrowth taking over the unploughed rights of way. It would appear that the farmers are being successful in denying access to the local countryside. What can be done?
In fact, the law (section 134 Highways Act 1980) says that the right to plough or otherwise disturb the surface of a path only exists where it is not reasonably convenient to avoid doing so.This 'right to plough' a footpath or bridleway only applies to cross-field paths and where it is exercised the occupier must restore the path within 24 hours of the disturbance or within two weeks if this is the first such disturbance for a particular crop. The restored path must be reasonably convenient to use, have a minimum width of 1m for a footpath or 2m for a bridleway, or the legal width if known, and its line must be clearly apparent on the ground.Any infringement of these requirements should be reported to the relevant highway authority which has clearly defined powers of enforcement, and default powers to resolve such problems itself,