Rights of Way: Impassable Paths

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1. 'Obstruction' or 'Out of Repair'?

The definition of an ‘obstruction’ includes ‘an obstacle, hurdle, bar, blockage’.  So, an obstructed path is one where something is lying (or has been placed) across the path which physically prevents you from using that part of the path.  It is a criminal offence, under section 137 of the Highways Act 1980, to obstruct the whole or part of the width of a public path.  Obstructions may include barbed wire on the top rail of a stile; or rubbish dumped on, or a garden boundary extended over, a right of way.

A highway out of repair has been defined[1] as where ‘the surface of it [the highway] is defective or disturbed in some way’; or ‘has become unsound or impaired by neglect or use’. So, when a path is ‘out of repair’, it is the surface of the path which needs to have physical works carried out in order to repair it.

Therefore, a barbed-wire fence placed across a path would be an obstruction, whereas a ditch dug across a path and not filled in would render the path out of repair.

If you are making a complaint where vegetation is involved, you need to be clear as to whether the vegetation has:

  • overgrown from the sides, such as a hedge or tree (landowner’s responsibility); or
  • grown up naturally through the path’s surface (highway authority’s responsibility); or
  • been planted as a crop (landowner’s responsibility).

If there is a combination of problems on a path, such as flooding, growth through the surface of the path and encroachment by a garden fence, you will need to make sure that you specify all of the problems to the authority.  More details about how the various problems can be dealt with are explained below, both in the table and in the High Court cases.

[1] Hereford and Worcester CC v Newman [1975] 1 WLR 901

2. Who is responsible for sorting the problem out?

In all cases, problems affecting rights of way need to be reported to the highway authority.

The highway authority’ is defined by the Highways Act 1980 section 1 as being the body responsible for maintaining highways, which include public rights of way.  The specific authority that you would need to contact depends on the type of highway and its location.

For public rights of way, the highway authority is defined as follows:

  • in Greater London — the London Borough Council[1].
  • in England — the county council or unitary authority.
  • in Wales — the county and county borough councils (which are all unitary authorities).

Highway Authorities have duties and powers to keep highways maintained, open and available for use.  The actions that an authority can take include service of a notice notice on the person causing the offence; telling him or her what action the authority intends taking with powers to recover their costs; and, where necessary, taking the potential offender to the Magistrates’ Court for an order to remove the iassue.

The authority will also have a record of the rights of way in its area, known as the definitive map and statement of public rights of way (DMS).  If you wish to take action on a path, it will be helpful to your case if the path is recorded on the DMS.  Nevertheless, if the path is not shown, this does not mean that it is not a right of way.  This is because the DMS will show most, but not necessarily all, the rights of way in the area. However, if the path is not shown, it may make it harder for you to convince the authority to take action.

Rights of way are public highways that fall into one of three categories:

  • Footpath — over which the right of way is on foot only.
  • Bridleway — over which the right of way is on foot, and on horseback or accompanied by a horse or beast of burden; and may include the right to drive animals. A bridleway can also be used by pedal cyclists.
  • Carriageway — over which the right of way can be passed with vehicles, as well as having footpath and bridleway rights. A carriageway that is recorded on the DMS will be shown as either:
    • a byway open to all traffic (BOAT), which has a right of way for vehicular traffic, but is mainly used for the purposes for which footpaths and bridleways are used, or
    • a restricted byway over which the right of way is on foot, on horseback or leading a horse, or with a vehicle which is not mechanically propelled eg pedal cycles or horse-drawn vehicles.

[1] The London Borough Council will inform you if a route has been designated as a ‘Greater London Authority’ road.  If this is the case, then Transport for London will be the highway authority.

3. The Legislation

Highways are protected by the Highways Act 1980.  Under this act, it is a criminal offence to obstruct or damage a highway.  Every highway authority has a duty, set out under section 130 of the Highways Act 1980, to:

assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste that forms part of it.

and further, the highway authority has a duty to:

prevent, as far as possible, the stopping up or obstruction

 

of a highway in its area.

There are a number of different types of offence specifically referred to under the Highways Act 1980. This legislation gives the highway authorities powers to resolve the problems.  The offences include damage to the surface of the highway, such as removal of the surface or depositing on the highway; damage to signs or the erection of misleading signs; ploughing and not reinstating the highway; wilful obstruction; vegetation or cropping; or placing things in or across the highway, such as gates that are too narrow, stiles that have not been properly maintained, posts, rope or barbed wire.  More details are given in the table below.

In certain circumstances, something that you might consider to be a problem may have what is called lawful authority.  This means that the person causing the problem is authorised by law to obstruct the highway (ie by or under an Act of Parliament) or the highway was dedicated subject to such a limitation or condition.  For example, a landowner may have lawful authority to put a gate or other structure on a footpath or bridleway for the purposes of keeping livestock in a field.  The structure may need to be to a standard approved by the authority, and maintained.  Other examples are the right to plough a cross-field path, or for statutory undertakers to dig trenches in the highway.  In both these cases the right to disturb the surface of the highway comes with the requirement that the surface must be properly reinstated and within a given timescale.

4. What can you do?

All obstructions should initially be reported to the highway authority. You can check on the authority’s website or with its rights-of-way officers whether the authority has a policy on how it deals with enforcement, or ploughing and cropping, for rights of way.  The authority should have a process for members of the public to make a complaint — in many cases an online map.

You could approach your local parish or community council, or parish or community meeting, if there is one for the area, to ask if it would make a representation to the highway authority.  This can be done in cases where a highway in the area has been unlawfully stopped up or obstructed, or where there has been unlawful encroachment on roadside waste on a highway for which the highway authority is responsible. See our information sheet on Requiring the highway authority to act on obstructed paths Section 130A of the Highways Act 1980 .

Alternatively, further action can be taken by members of the public if the highway authority fails to act.  The legislation enables, in certain circumstances, the public to take action through a process of serving notices on the authority to compel the authority to carry out its duty.  This requires the authority to respond, stating what action they propose to take, and by when.  These processes are described in the section 130A process, whereby you can require the authority to take action against an illegal obstruction, or the section 56 process by which you can require the authority to restore a path which is out of repair.

Some problems may be resolved within a month, but, where matters need to go to court, it may take more than a year.  However, please note that it is not possible to use the section 56 or section 130A processes for all cases. For example, if the complaint is about snow or ice, you would need to start by applying to the Magistrates’ Court.

In the table below, square brackets have been used to denote where you could take further action, but such action would be unlikely to be effective. This is because the problem, such as snow or crops, may well have disappeared before the matter gets to court, due to the length of time the court process takes.

The authority may have a policy stating how it will deal with farmers who persistently obstruct rights of way across their land such as by ploughing and cropping. The authority would not be able to act without receiving reports of such problems.  Each authority may be different, but it is likely that it would need reports of problems each year over a 3- to 4-year timescale.  The authority should contact the landowner/occupier requesting that the path is reinstated within the appropriate timescale.  If this does not happen, the authority has powers under the Highways Act 1980 to reinstate the path and to recover its costs.

A member of the public may also prosecute a person who is responsible for the wilful obstruction of a public path, under section 137 of the Highways Act 1980, but it is far preferable to persuade the highway authority to act instead, in accordance with its duty.

5. The table

The table below gives a list of various reasons why a path might be impassable and what action can be taken by a member of the public to restore the right of way.  While it is a fairly comprehensive list, of the most frequent types of problem, it is not exhaustive.  In all cases, issues need to be reported to the highway authority. Where ‘Inform highway authority” is the only box marked in the table, it is because the public cannot use either the section 56 or section 130A process to take further action.

 

 

Table of reasons why path may be impassable

 

Reason path impassable Process to achieve removal
Inform highway authority Section 130A Section 56
Barbed wire obstructing passage along highway

 

x
Bridge out of repair.

 

x
Building – all or any part of a temporary, or permanent, building, or works for the construction of a building.

 

x
Crop – any cultivated plant other than grass ie it has been sown or planted.  Grass is defined as being not a cereal crop, but a variety or mixture commonly used for pasture, silage or haymaking.

 

x
Deposit on highway of any sort – eg rubbish, liquid. causing a nuisance.

 

x
Disturbance to the surface of the highway.  (There may be lawful authority to disturb footpaths or bridleways on agricultural land.)

 

x
Ditch across highway.

 

x
Fence across highway, including electric fence.

 

x
Gate – unless a gate is included in the definitive statement or, in the case of footpaths, bridleways or restricted byways, authorised under section 147 of the Highways Act, or consistent with any gate historically present in the highway at the time of dedication, it is an obstruction.  Gates need to be at least 10 feet wide across carriageways and at least 5 feet wide across bridleways. The measurement is between the gateposts.

 

x
Gate – locked

 

x
Ploughing.  There is lawful authority to disturb cross field footpaths or bridleways where it is not reasonably convenient to avoid doing so, but they must be reinstated within 14 days.  This lawful authority does not apply to byways open to all traffic, restricted byways or field edge footpaths or bridleways.

 

x
Presence of person – e.g. challenge by a landowner to use of a right of way, threatening behaviour etc.

 

x
Misleading sign

 

x
Overhanging hedge, tree or vegetation.

 

x
Object capable of causing an obstruction eg any machine, pump, post or other, whether or not it is on wheels.

 

x
Soil or snow etc.

 

x
Stile – unless the stile is included in the definitive statement, or in the case of footpaths or bridleways authorised under section 147 of the Highways Act, or consistent with any stile historically present in the highway at the time of dedication, it is an obstruction.

 

x
Structure adapted or used for human habitation, or forms any part of any such structure eg tent, caravan, vehicle or other temporary movable structure.

 

x
Trees or vegetation growing in the highway and damaging the surface.

 

x
Wall across highway. x

 

6.Case law

While there is legislation making obstruction of the highway a criminal offence, it is often disputed by the highway authority that it is not at fault for not taking action, or by the landowners or occupiers that they are not responsible for the obstruction of which they are accused.  Decisions made at the Magistrates’ Court or Crown Court can be appealed to the High Court and Court of Appeal.  The decisions then made by the judges at these higher courts can clarify the law.  This is done by analysing the law to resolve ambiguities for deciding the current case.  The judge’s decision then sets a precedent which the lower courts are bound to follow in later cases.  This is known as case law.  Case law is helpful in that it explains the reasons for the decision, thereby providing more details about how the law should be applied.

When you are considering making a complaint, it is important to know whether there have been any other similar cases, and how these were viewed by the judges.  This is because new cases will be treated in the same way unless the law, or the decision in case law, is changed.

By reading the cases you will discover the details of what happened, and these will refer you to other relevant cases that were considered at that time.  Each case is shown below with its legal reference.  This reference is useful if you wish to search for a copy of the case.  The decisions are laid out in a set format, explaining the background to the case, the arguments put forward by both sides, and then the judge’s decision.

There are various cases about whether a path is obstructed or out or repair, and how the law should be applied.  A summary of five cases is given below, which shows how the law is currently applied; other cases are also available.   In the first case, the court clarified when a highway is obstructed rather than ‘out of repair’.  The second case considers a fence encroachment and planting to be an obstruction.  The next three cases deal with arguments put forward as to why the right of way was not obstructed.

 

6.1 Hereford and Worcester County Council v Newman [1975] 1 WLR 901

  • This case explains how the courts define the difference between a route which is 'out of repair’ as opposed to being ‘obstructed’.

In 1974, Mr Peter Newman (a member of the public) made complaints against (the then) Worcestershire County Council.  These were made under section 59 of the Highways Act 1959 (the precursor to section 56 of the Highways Act 1980).  Mr Newman’s complaint was that four footpaths, maintainable at public expense, were ‘out repair’.  Two paths were blocked with dense vegetation, including in one place a seven-foot-high hawthorn hedge, the third by a barbed-wire fence and the fourth by a cesspit outlet.

The magistrates agreed that the footpaths were ‘out of repair’ and made orders requiring the council to put the paths into proper repair.  The county council appealed against the decision on the first three paths.  The council’s reason for appealing was that the paths were obstructed and not out of repair.

When the case reached the Court of Appeal, the decision was that the path obstructed by the barbed-wire fence was not ‘out of repair’, but the other two paths blocked by dense vegetation growing through the surface of the paths were ‘out of repair’.

One of the judges commented

I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair – e.g. an icy road would not in my view be out of repair. But if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair… . I cannot imagine anybody describing the presence of such a fence as a want of repair of the path. …The other two paths have a substantial growth of vegetation in them. That vegetation no doubt constitutes an obstruction, but it must also interfere with the surface of the paths. If there had been merely branches and thorns overhanging from the sides of the footpaths I should not consider that they were out of repair, but I understand that a hawthorn hedge in one case and thick undergrowth in the other is actually rooted in the surface of the paths. With some hesitation I am of the opinion that this did cause the paths to be out of repair.

 

6.2 Westley v Hertfordshire County Council [1998] EWHC Admin 195

  • This case considers that encroachment by a garden fence and planting of trees/shrubs amounts to obstruction, and is not out of repair.

At the time that this case was made, there was no means for the public to complain about a county council not complying with its duty to take action against obstructions.  Mr Mark Westley therefore served a notice that the bridleway was out of repair, and argued that the obstruction was a public nuisance under the Environmental Protection Act 1990.

In 1983, planning permission was granted by a district council in Hertfordshire for a residential development on a site adjoining a public bridleway.  When the houses were built, some fencing encroached onto the bridleway, thereby significantly reducing its width.  Residents proceeded to grow trees/shrubs on that section of the bridleway.

Mr Westley served notices on Hertfordshire County Council, the body responsible for maintaining the bridleway.  These notices were under:

  • Section 56 of the Highways Act 1980, alleging disrepair, and
  • Section 82 of the Environmental Protection Act 1990, alleging that the obstruction amounted to a statutory nuisance.

Magistrates agreed with both complaints, but Hertfordshire County Council successfully appealed against their decision at the Crown Court.  Mr Westley then appealed to the High Court.  The High Court decided that the Crown Court was correct to refuse the complaint under Section 56 of the Highways Act 1980 on the basis that the obstruction of a bridleway did not amount to disrepair.  The Crown Court was also correct to refuse the complaint under Section 82 of the Environmental Protection Act 1990 on the grounds that the obstruction, although a common law nuisance, did not amount to a statutory nuisance.

However, following the case, Hertfordshire County Council did take action against the obstruction, and was successful in getting the fences etc removed after the county council served notice on the landowners.

 

6.3 Ernstbrunner v Manchester City Council [2009] EWHC 3293 (Admin)

  • This case of alleged obstruction did not succeed because it was decided that the gate was not on the definitive line of the footpath.

In 2004, Dr Edgar Ernstbrunner, a local representative of the Ramblers’ Association, applied for an order under section 130B of the Highways Act 1980 requiring Manchester City Council to secure removal of a gate.  He contended that the gate obstructed a public footpath where it crossed a farm.

The Council duly served a notice requiring removal of the gate, but the gate was not removed.  The Magistrates’ Court and the Crown Court dismissed his application on the grounds that the gate in question was not on the line of the footpath as recorded on the DMS.

When Dr Ernstbrunner appealed, the High Court decided that the Crown Court had not been precluded, as a matter of law, from finding that the route of the footpath as shown on the definitive map (maintained by the council under Part III of the Wildlife and Countryside Act 1981) bypassed the private road on which the gate was erected, even though the definitive statement made no reference to such divergence.

 

6.4 Herrick & Anor v Kidner & Anor [2010] EWHC 269 (Admin)

Landmark judgment on highway obstruction - Open Spaces Society

  • This case considers that, for the purposes of the legislation, any structure within the highway which prevents the public from using or enjoying the whole of a highway “significantly interferes with the exercise of public rights of way over that way”.
  • Please note that the initial complaint by the local rambler was made in September 2006, and the appeal process ended at High Court in January 2010.

In Somerset in 2004, Mr and Mrs Herrick (the landowners) had constructed an impressive gateway across a route that was recorded as a public footpath.  The gateway consisted of three substantial pillars constructed of brick and stone, flanked by brick fly-walls.  There was further landscaping of the area around the gates and the pillars of the gateway supported iron gates.  Between the first and second pillars there was a pedestrian gate, and between the second and third pillars there were double gates.

In 2005, Somerset County Council twice served notice on the landowner for the removal of the structures.  The landowner did not remove them.

In September 2006, a local rambler, Mr Peter Kidner, issued a notice to the county council under section 130A of the Highways Act, and in March 2007 he made a complaint to the Magistrates’ Court.  The case was heard in October 2007.  The Magistrates ordered that the electronic mechanism on the gates be disabled.  The Magistrates declined to order the removal of the gates, and it does not appear that the Magistrates were invited to order the removal of the pillars.

The landowner appealed to the Crown Court against the magistrates’ decision to keep the gates [locked] open.  The Crown Court ordered that the gates and the middle gate pillar should be removed.

The landowner then appealed to the High Court, and the case was heard in January 2010.  The landowner's case was that there was ample room to walk between the pillars if the gates were kept open.  The High Court judge did not agree with this, but instead agreed with the decision of the Crown Court.  However, the High Court considered that, in allowing the retention of the outermost pillars and part of a fly wall, an irrelevant consideration had been taken into account which should not have been.  The High Court decided that the Crown Court did not have the power to order removal of only part of the obstruction, and should have ordered that all parts of the structure which impinged on the highway were to be removed.

 

6.5 Kind v Northumberland County Council [2012] EWHC 603 (Admin)

  • This case decided that the highway authority did not have the power to authorise a cattle grid across the full width of a bridleway.
  • The judgment provided an important statement of principle as to the limits on the power under section 147 Highways Act 1980 to authorise structures on public paths, and also guidance as to how the courts should approach the discretion under section 130B Highways Act 1980.

In October 2009, Mr Alan Kind applied to the Magistrates’ Court, under s130A, for an order to require Northumberland County Council to take steps to remove a cattle grid which spanned the entire width of a bridleway.  The bridleway ran along a farm track, and the farmer had provided a bypass over private land through two gates at her own expense.

At the Magistrates’ Court, the district judge refused Mr Kind’s application. The judge found that the bridleway was obstructed by the cattle grid and significantly interfered with the public’s right to use the route.  He had decided not to order the local authority to remove the cattle grid because there was a satisfactory bypass for walkers and riders, and the order would have adverse financial consequences for the local authority.

In March 2010, Mr Kind appealed to the Crown Court.  Prior to the hearing at the Crown Court, the County Council purported to authorise the cattle grid under section 147 of the Highways Act 1980, on the condition that the bypass remained available for public use.  The Crown Court then dismissed the appeal on the basis that the obstruction was lawfully authorised.  The court also stated that it would not have granted an order in any case, as the bypass enabled the right of way to be used by walkers and riders without any significant interference.

In January 2011, at the request of Mr Kind, the Crown Court appealed to the High Court for its opinion on a set of facts (a process known as ‘stating a case’).  The Crown Court asked whether it had erred:

  • in finding that the cattle grid was lawfully authorised,
  • in holding that (if the cattle grid were not lawfully authorised) it would not have exercised its discretion [to order the removal of the cattle grid],
  • in finding that, with the arrangement required by the section 147 authorisation [for the use of the bypass] the right of way could be used fully and without any significant interference, and
  • in finding that, as the cattle grid could be circumnavigated by the public by deviation onto private land, this was a proper reason to decline to order the removal of the cattle grid.

The High Court judgment considered whether the decision at the Crown Court had been properly made.  The judgment stated that it was common ground that the cattle grid significantly interfered with the exercise of the public’s right to use the bridleway.  It was also common ground that the legislation gave the court a discretion whether to exercise its power to grant an order against the highway authority.

The judge decided that the local authority did not have the power to authorise the cattle grid in this case, and the Crown Court had therefore erred in the first and third questions relating to the authorisation.  The judge referred the matter back to the Crown Court to decide how to exercise its discretion, stating that he did not think that the balance could lie in favour of declining to make an order. The judge declined to answer the last question.

 

While the Open Spaces Society has made every effort to ensure the information obtained in this fact sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.

 

© Open Spaces Society, September 2020

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