Chapter 13: Legal action over rights of way
Links and downloads referred to in the text of Chapter 13
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| 352 | Removal of obstructions from highways: enforcement of local highway authorities duty to prevent obstruction of highways. Notes to accompany Statutory Instrument 2004 No. 370 (Defra) | download |
| 352 | Removal of obstructions from highways (Ramblers Advice) | link |
| 353-364 | Letters and informations for legal action | download |
Supplement to the text of Chapter 13
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| 330 | 13.1.2 Where legal action is taken by an private person against a landowner to right a wrong that constitutes a criminal offence, (e.g. obstruction of the highway, see 13.2.1), the action takes the form of a private prosecution. For the power of the Crown Prosecution Service to take over the conduct of a private prosecution, see R (Gujra) v Crown Prosecution Service (2011). | link to judgment |
| 331 | 13.1.3 Section 141 of the Tribunals, Courts and Enforcement Act 2007, brought into force on 1 April 2008, gives the court the power to substitute its own decision in certain cases of judicial review where the decision maker is a court or tribunal, the decision is quashed on the ground that there has been an error of law and the High Court is satisfied that it is the only decision the court or tribunal could have reached. Tribunals, Courts and Enforcement Act 2007 (Commencement No. 3) Order 2008. | link to Act link to order |
| 332 | 13.1.3 The circumstances in which the court may overturn the decision of an administrative body include instances in which a procedure has been followed that is unfair to one of the parties. In R (Chaston) v Devon CC (2007) owing to uncertainty as to the correct route of a path, the surveying authority appointed an inspector to hold a non-statutory inquiry to hear the evidence and make a recommendation as to the correct route. The inspector found that of three possible routes, the correct one was down steps constructed by nearby landowners on a line that took the path away from the front of their properties. The other two routes were down a lane that ran in front of the properties. The inspector found that the correct route was, as contended by the landowners, down the steps. The authority subsequently received further representations from members of the public that supported a line that passed down the lane. The authority notified the landowners but did not refer the matter back to the inspector. The authority resolved to reject the inspector’s conclusion and determined that the correct line passed down the lane. In an application for judicial review of the authority’s decision the landowners sought an order that the decision should be quashed. The High Court held that, to have acted in a procedurally fair manner, the authority should have either informed the landowners of the further representations and invited them to comment, or referred the matter back to the inspector. Its failure to follow either course meant that the manner in which the decision had been reached was contrary to the rules of natural justice. The decision was therefore quashed and the matter referred back to the inspector for reconsideration in the light of the fresh evidence supplied. | link to judgment |
| 333 | 13.1.4 The Magistrates’ Courts Fees Order 2008 as amended by the Magistrates’ Courts Fees (Amendment) Order 2009, includes fees for the following matters: (a) (fee 1.1) for attendance on an application which requires a justice of the peace to perform a function away from the court premises (e.g. viewing a highway), £50; (b) (fees 15.1 and 15.3) on commencing proceedings where no other fee is specified and where leave or permission is not required, £200, and for a hearing at which the proceedings are contested, £500. | link to 2008 regulations link to 2009 regulations |
| 345 | 13.4.3 In Ali v City Of Bradford Metropolitan District Council (2010) it was held that whilst a highway authority may be liable for a nuisance that it created, no action lies at the suit of an individual under either section 41 or section 130, nor by virtue of section 263(1), of the Highways Act 1980 against a highway authority either for breach of statutory duty or for private nuisance in respect of injury suffered as a result of the failure of the authority to exercise the power conferred by section 149 to secure the removal of matter that constitutes a nuisance. | link to judgment |