Rights of Way: Requiring the highway authority to act on obstructed paths Section 130A of the Highways Act 1980

The Open Spaces Society has been defending open spaces in England and Wales since 1865.

Introduction

What can you do if a path you use becomes obstructed, you report it to the highway authority and no action is taken?

This information sheet provides details about what you, as a member of the public, can do.  It covers the process of making an application under section 130A of the Highways Act 1980, and what your involvement might be in the process thereafter.

It covers the following.

Background details and further information are also provided in the ‘Impassable Paths’ information sheet.

This fact sheet is brought to you by the Open Spaces Society. We campaign for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 900 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.

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1. The types of highway affected and how the legislation applies

Highways, which include footpaths, bridleways, restricted byways and byways open to all traffic, are protected by legislation under the Highways Act 1980.  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 to

prevent, as far as possible, the stopping up or obstruction of the highways [in their area]

The offence is committed by whoever obstructs the highway, but only the highway authority has the power to take steps for the removal of the obstruction.  However, legislation enables you to take steps to make the highway authority carry out its duty.  The action that a highway authority can take differs depending on the type of obstruction.

An obstruction is something lying or placed across the path that physically prevents you from using the path such that, if the obstruction were removed, the path would once again be useable.  Please note that this is different from ‘out of repair’, which means that the surface of the path would need be reinstated before it could be properly used. See section 56 information sheet.  There is also a difference in how the law deals with vegetation which:

  • has been deliberately planted (which counts as ‘wilful’ obstruction), such as a crop, or
  • is overhanging a highway, such as natural growth from trees or hedges, or
  • is naturally growing up through the surface of the highway.

There are a number of different types of obstruction specifically referred to in the legislation.  In certain circumstances, something that you might consider to be an obstruction may have what is called 'lawful authority'.  This means that the person causing the obstruction is clearly authorised by law to obstruct the highway.  This could be by, or under, an Act of Parliament, or where the highway has been dedicated subject to such a limitation or condition. For example:

  • a landowner who wishes to keep livestock in a field crossed by a footpath or bridleway can have a gate on the path authorised by the highway authority (i.e an ‘authorised gate’) for keeping stock in the field[1].
  • the structure has been present since the time the path came into existence[2].
  • the highway authority may have erected barriers for safety reasons[3].

Since a change in the legislation in 2004, members of the public in England and Wales have been able to take steps to require highway authorities to carry out their duties in relation to certain types of obstruction.  The procedure is given in section 130A to 130D of the Highways Act 1980.  This is commonly referred to as the section 130A (‘s130A’) process.

If the authority fails to take action on your initial complaints about an obstruction, you can make an application to the magistrates’ court. This process would be for civil, not criminal, proceedings.  Please note that there are potential costs involved where cases are taken to the magistrates’ court.  More details are given in the section on costs below.  These costs relate to both the making of an application, and the payment of costs by the losing party to the winning party awarded by the magistrates.  The cost of making an application to the magistrates’ court in January 2020 was £226.  If the application was contested by the highway authority, a further fee of £567 would be payable by you, giving a total cost of £793.  While it has not yet been tested, there is a good argument that one court fee could relate to several different obstructions.

However, there are various circumstance and types of obstruction where the s130A procedure does not apply, including:

  • to inner London authorities i.e. Transport for London, inner London Boroughs or the Common Council for the City of London.
  • to obstructions caused by the authority itself (as it will be unable to take action against itself);
  • to all roads which are public vehicular highways (unless they are byways open to all traffic recorded on the council’s legal record of rights of way, the definitive map and statement), or they are restricted byways (whether or not recorded on the definitive map and statement);
  • if the obstruction has lawful authority eg an authorised gate;
  • to obstructions caused by permanent or temporary buildings or materials for their construction;
  • to structures used for human habitation eg. tent, caravan;
  • to obstructions caused by the presence of a person;
  • in cases where the path is out of repair (section 56 of the Highways Act 1980 process may be available instead).

[1] authorisation under s147 Highways Act 1980

[2] these should be, but not always are, recorded in the Definitive Statement

[3] authorisation under s66 Highways Act 1980

2. When might an application be needed?

oIf you have reported to your highway authority that a path has become obstructed, it should respond stating what action, if any, it will take and when.  If it does not respond, or does not take the action that it said it would, or reply giving you reasons as to why it is not taking action, you can make an application to the magistrates’ court.  As there are many demands on an authority’s budget, there may be circumstances whereby rights-of-way officers might be unable to take action without receiving reports from the public who use the routes.  A notice under the s130A process may therefore enable officers to justify to councillors why they have to take action against a landowner.  However, applications cannot be made in all circumstances, as explained above.

The section 130A procedure applies to:

  • footpaths, bridleways and restricted byways (where there is sufficient evidence that they exist e.g. recorded on the definitive map and statement).
  • Byways Open to all traffic (BOATs) recorded on the definitive map and statement.

which are obstructed by:

  • any structure, including a machine, pump, post or other object of such a nature as to be capable of causing an obstruction, whether or not it is on wheels;
  • anything deposited on a highway which constitutes a nuisance;
  • any hedge, tree, shrub or vegetation of any description that overhangs a highway so as to endanger or obstruct the passage of vehicles, pedestrians or horse-riders. Please note that this differs from vegetation growing through the surface of the highway, which has to be dealt with separately— see Impassable paths information sheet.

Your application will need to show that:

  1. the obstruction is one to which section 130A applies. If the obstruction could be inhabited, you would need evidence that it was not being used for human habitation when you start this process, and
  2. the way obstructed is a footpath, bridleway, restricted byway, or is a byway open to all traffic shown on a definitive map and statement, and
  3. the obstruction significantly interferes with the exercise of public rights of way over that way.

There is case law about the application of the section 130A process and what constitutes an obstruction. In 2010, in Herrick v. Kidner and Somerset County Council [2010] EWHC 269 (Admin) (‘Herrick’), Cranston J decided that the requirement, under section 130B(4)(c), that works must ‘significantly’ interfere with the exercise of public rights of way meant that such works should not interfere with the right of a member of the public to have unrestricted access to the whole, or any part of, the highway.

More details can be found about this at Landmark judgment on highway obstruction - Open Spaces Society

and to other cases in Obstructed Paths.

In Kind v Northumberland County Council [2012] EWHC 603 (Admin), Moore-Bick LJ, with whom King J agreed, stated:

‘14. The nature of a highway and of the public's right to the use and enjoyment of it were considered in some detail by Cranston J in Herrick v Kidner [2010] EWHC 269 (Admin), [2010] 3 All E.R. 771. Having considered a number of authorities, including Director of Public Prosecutions v Jones [1999] 2 AC 240 and Hampshire County Council v Gillingham (unreported, 5 April 2000), he summarised the principles to be derived from them in paragraph 33 of his judgment as follows:

… first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly , those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.

3. What is the process?

You need to start by informing the highway authority of the problem.

You will need to:

  • check that the authority agrees that the path is a footpath, bridleway, restricted byway or byway open to all traffic, and
  • ask it whether the obstruction has lawful authority and, if so, what is that authority, and
  • if there is no lawful authority, what action it will take and by when.

If the highway authority fails to act, you can make an application to the magistrates’ court.

Before applying to the magistrates’ court, you must follow a series of steps. These have to be completed within timescales given by the legislation.  As well as providing the timescales, the legislation also provides the forms of the wording that must be used, referred to as ‘Forms 1-5.’  Please note that the forms to be used differ depending on whether you are in England or Wales.  Both sets of forms have notes on them, which are worth reading, but please ensure that you use the set of forms that are applicable to the location of the path about which you are complaining.  If you do not follow the legislation and correct regulations, you will need to start again at the beginning.  The purpose of these steps is to require the highway authority to comply with its duty, under the threat of being taken to the magistrates’ court — without you actually having to commence proceedings at the court.  You are therefore able to stop the process at any time.  You are not committing yourself to applying to the magistrates’ court.  Until the point at which you apply to the court, your personal details will not be disclosed.  However, there will be times when you will need to go to the magistrates’ court to get the obstruction removed. At that time, your personal details will be disclosed.

A flowchart is available setting out the required steps (with timescales) of the process.

4. What do I need to do before making an application?

You must contact your highway authority before starting the process to check whether:

  • it agrees that the route is a right of way, and, if so, what is its reference ie its parish, path number and status;
  • it is already aware of the problem, and, if so, what action it might already be taking;
  • there is lawful authority for what you consider to be an obstruction.

If the highway authority agrees that it is a right of way; that there is no lawful authority for the obstruction; and that it is not taking any action, you can start the section 130A process.

5. What information will I need to collect?

You will need to be able to describe what the problem is, and the date on which you encountered it.  Photographs are ideal, but are not essential.

You will need to be able to describe the location of the obstruction.  This could be:

  • by describing the route’s junction with the nearest metalled highway on each side of the obstruction;
  • an Ordnance Survey six-figure grid reference;
  • an Ordnance Survey map extract or copy;
  • the parish name and path number of the route on the definitive map.

Where known, you will need to give the name and address of the person whom you think may be responsible.

6. How is an application made?

You need to use the forms provided by the legislation.  There are five forms as follows:

  • Form 1 is the notice requesting a local highway authority to secure the removal of an obstruction;
  • Form 2 is the notice by a local highway authority to persons who may be responsible for an obstruction;
  • Form 3 is the notice by a local highway authority, to a person who served notice in form 1, stating that the authority has served notice in form 2;
  • Form 4 is the notice to a local highway authority of an intention to apply to the magistrates’ court for an order requiring the authority to take steps for securing the removal of an obstruction; and
  • Form 5 is the notice of a magistrates’ court order requiring a local highway authority to take steps for securing the removal of an obstruction.

The forms can be found using the links here:

Form 1 -         England         Wales

Form 2 -         England         Wales

Form 3 -         England         Wales

Form 4 -         England         Wales

Form 5 -         England         Wales

Form 1 – ‘Request date’

The first step is to complete a form 1 provided by the legislation.  This is a notice requesting the highway authority to remove the obstruction.  You (who would then be known as ‘the complainant’) will need to serve form 1 on the highway authority (who would then be known as ‘the respondent’).

The notice needs to be:

  • made in writing, and delivered to the respondent (ie the chief executive of the highway authority).

It can be sent by post (signed-for delivery is recommended) or delivered by hand (obtain a receipt) or by leaving the notice at the proper address.

You will also need to:

  • make a note of the date you serve the notice (‘request date’) as it is important to record it for the process that follows;
  • describe the nature of the obstruction, ideally with photographs;
  • describe the location of the obstruction, or show it on a sketch map/copy of an OS map or with a six-figure grid reference;
  • where known, provide the name and address of the person(s) responsible for the obstruction (however, if you do not know who is responsible, do not make any assumptions);
  • keep a copy of your completed form 1.

Form 3 - Receipt within one month of request date

Within one month of the request date, you should receive from the highway authority:

  • A copy of form 3 telling you:
    • what action it will take, and
    • Whom it believes to be causing the obstruction.

Form 4 - Two months after request date

After two months from the request date, you can use form 4 to serve notice on the highway authority that you intend to apply to the magistrates’ court.  You cannot make an application to the magistrates' court until form 4 has been served.  Before serving notice, it is advisable to check that the obstruction has not been removed. However, please note that you would need to serve the form 4 notice no later than six days before ‘six months after the request date’.  If the form 4 notice is not served within the six months (less six days) window after the request date, you will need to start the process again from the beginning.

Application to magistrates’ court — after five days from serving form 4, but within 6 months of the request date

Once form 4 has been served on the highway authority, you must wait a minimum of five days before you make your application to the magistrates’ court.  The application does not have to be made immediately after five days, but it must be made within six months of the request date.  Again, you should check that the path is still blocked before making the application.  If you do apply to the magistrates’ court, it is recommended that you take legal advice before proceeding.

Your application is for the magistrates to make an order under section 130B of the Highways Act 1980.

Details of what happens at magistrates’ court can be found here.

Before the magistrates’ court will make an order, it will need to be satisfied that:

  • the obstruction is one to which section 130A applies. The defence that it is a structure (such as a tent) used for human habitation does not apply if it has only been used since notice was served on the request date, and
  • the way obstructed is a footpath, bridleway or a restricted byway, or a byway open to all traffic which is recorded on the definitive map and statement, and
  • the obstruction significantly interferes with the exercise of public rights of way over that way.

However, the highway authority may prevent the order being made if it can satisfy the magistrates’ court that:

  • the right of way is seriously disputed, or
  • it has no duty to secure the removal of the obstruction, or
  • arrangements have already been made to secure the removal of the obstruction within a reasonable length of time, having regard to the number and seriousness of obstructions in respect of which the authority has such a duty.

In our view, a right of way which is recorded in the definitive map and statement cannot be ‘seriously disputed’, because s.56(1) of the Wildlife and Countryside Act 1981 provides that these documents are conclusive evidence of the particulars contained therein.  However, if application is made in relation to an alleged right of way which is not recorded in the definitive map and statement, the complainant will need to be prepared to produce convincing evidence of the existence of the right of way.

If the magistrates’ court is satisfied that there is an obstruction in the highway that needs to be removed, then an order will be made.  Such an order will not take effect for 21 days, during which time an appeal could be made.  If an appeal is made, the order would not take effect until after the final determination, or withdrawal, of the appeal.  The appeal may be made to the crown court, or ‘by way of case stated for the opinion of the high court’.  It is stated on form 5 that the time period for an appeal can be extended by the crown court.

An appeal can be made on the grounds that:

  • section 130A does not apply, or
  • the obstruction does not significantly interfere with the exercise of public rights of way over that way.

The case law of Herrick [2010] and Kind [2012] cited above describes what is meant by ‘significantly’.

The order would require the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction.

The authority will then need to display notices (form 5) about the order on either side of the obstruction and at the points where the highway joins with another highway on either side of the obstruction.  The order may be varied following an application by the authority to the magistrates’ court.

The Highways Act 1980 makes no provision as to what should happen if there is a failure to comply with the magistrates’ court order.   However, failure to comply with an order of the court maybe a contempt of court.

7. Costs

Currently, the costs of the case will be determined at the magistrates’ court under the civil litigation costs procedures, wherein the costs ‘follow the event’.  This means that if you win, you ought to be able to claim your costs, but if you lose, it is likely that costs would be awarded against you.  This means that the party that fails to get the result sought would be at risk of having to meet the costs of the successful party, or parties, as well as own costs.  However, there have been cases where parties agreed that the approach to costs should follow the ‘regulatory case’ approach, which would favour the highway authority.

In the case of Derbyshire County Council v High Peak Magistrates’ Court [2013] EWHC 1762 (Admin) a case was taken to the high court in respect of the payment of costs to the person who applied for an order under the section 130A process.  There was a discussion about the section 130A process and how it was followed, but the decision was whether the District Judge had been correct about the decision he had made in respect of the award of costs.

In paragraph 29, the judge noted that there was considerable debate between the parties as to whether the normal costs rule (‘the loser pays"’) applied or whether the council benefited from the more favourable approach to costs discernible in what was described as ‘regulatory’ cases.  The judge proceeded on the assumption that the approach in the ‘regulatory’ cases applied.  Part of the rationale for the approach in regulatory cases is to create incentives that promote the public interest.  However, he stated that it was not necessary for him to decide the question of which approach should apply.

So it is important to note that full payment of costs is not automatic, and it should be remembered that, in any case, the amount awarded is at the magistrates’ discretion.

Even if you do win, you are unlikely to be paid your full costs, since magistrates decide the amount of the award and may take mitigating factors into account.

You need to consider that if you do lose, the highway authority’s costs could be substantial.  The authority is likely to be represented by its solicitor, and if the solicitor instructs counsel, the costs could be very high indeed — perhaps £20,000 for a modest hearing, including the authority’s preparatory work.  However, the legislation is clear (see section 130D) that if your application does not succeed and no order is made, the magistrates can take into account any failure by the highway authority to give the applicant appropriate notice of, and information about, whether:

  • the obstructed way was seriously disputed, or
  • it had no duty to remove the obstruction, or
  • arrangements had been made for the timely removal of the obstruction.

You must have a note of your costs prepared before going into court, as you would need to ask for them before the magistrates close the proceedings.

You need to keep an account of your costs.  These would include the following.

  • The cost of making an application to the magistrates’ court.
  • The cost of serving the application on the magistrates’ court (eg postage).
  • Cost of any legal advice given on the application or representation at court.
  • Your time preparing your case for the court.
  • Your travel expenses.
  • Your witnesses’ travel expenses.
  • Cost of copies of any documents produced.

There is some uncertainty whether a magistrates' court may, in a complaint under s.130A, award costs in favour of, or against, a landowner who seeks to appear before the court to oppose the complaint.  If an application for costs is expected, legal advice should be sought (a member of the society may seek advice from the society)

8. Other points to note

Timescale - You will need to start by contacting the highway authority for details and to see if it will take action.  This could take a month or more.  If you need to serve notice, the respondent has a month to respond.  If you do apply to magistrates’ court, you need to do so within six months of sending form 1 to the highway authority. The court will then need to set a date for the hearing, which is likely to be after several months or more.  Assuming that the court finds at the hearing that there is a highway which is out of repair, the court will give a reasonable time for the highway authority to secure the removal of the obstruction.  The whole process could easily take 12 months or more.

If the court’s decision is appealed to a higher court, it is likely to take another 12 months to resolve.

Data Protection - The highway authority will treat your identity in confidence and will deal with your details in accordance with the Data Protection Act 1998.  If you have concerns about this, you should contact your highway authority.  However, your identity will become known if you make an application to the magistrates’ court.

Legislation - The legislation for dealing with obstructions is:

Guidance is given in Circular 1/09 (England) which refers in paragraph 6.18 to:

Guidance for Wales is given in Guidance for Local Authorities on Public Rights of Way (October 2016) at paragraph 4.38. It is very brief.

 

9. Conclusion

There is a process, set out by legislation, to enable members of the public to make a highway authority carry out its duty to ensure highways are not obstructed.

The steps need to be followed carefully to ensure the application is properly made, and to increase your chance of success and the removal of the obstruction.  It will take time to do properly, and can be very rewarding, especially when your route is cleared of the obstruction.  However, in light of the implications outlined above, if you are intent on following this process, you may wish to seek legal advice as to the strength of your case etc before proceeding.

 

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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