Landmark judgment on highway obstruction

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A High Court judge has ruled that gates erected across Barcroft Lane by Mr Brian Herrick, owner of the £3.8-million Barcroft Hall at South Petherton in Somerset, are unlawful.  They must now be removed.

The gates in April 2007

The gates in April 2007

On 17 February Mr Justice Cranston handed down his judgment in Herrick v Kidner and Somerset County Council, which is the triumphant end of a six-year campaign by local resident and OSS member Peter Kidner to get the unlawful gates removed from Barcroft Lane (public footpath Y24/10).

Mr Kidner had used a legal device (section 130A-D of the Highways Act 1980(2)) which empowers a member of the public to serve a notice on the highway authority (Somerset County Council) to get an illegal obstruction removed from the highway.

The case went to the magistrates’ court where Peter Kidner won.  Brian Herrick appealed to the Crown Court which ruled that the gates and the middle pillar be removed, but that the outer pillars and flywalls could remain.  Mr Herrick then appealed to the High Court and now Mr Justice Cranston has ruled that the gates must be removed in their entirety.  It is Somerset County Council’s duty to ensure that this happens.

Peter Kidner had to prove that the gates ‘significantly interfered with the exercise of public rights of way over that way…’.  For some time they were locked but, he said, even when they were open, they were a psychological barrier to the public.  The judge agreed.

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.

Says Kate Ashbrook, general secretary of the Open Spaces Society: ‘This is a landmark ruling.  It shows that the whole width of the public highway must be available for public use.  No longer can landowners and occupiers get away with filching parts of the highway—the highway authority has a legal duty to protect the public’s rights over the whole highway.

‘We congratulate Peter Kidner for his courage and persistence, and his legal representatives George Laurence QC and Ross Crail for their eloquent legal arguments.  They have made a massive difference in clarifying the law for walkers, riders and other path users, to enable us to get illegal obstructions removed from the highway and to exercise our rights fully.’

To read the judgment, click here

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