Scroll down for the supplement to Chapter 9.
Links and downloads referred to in the text of Chapter 9
|254||Cases in which magistrates convicted persons of unlawfully obstructing a path by causing crops to grow on it.||download [file BBE10]|
|271||Cattle and public access in England and Wales : Agriculture Information Sheet No 17EW (Health and Safety Executive, 2006)||download|
|271||Code of Practice for Using Plant Protection Products (Defra Pesticides Safety Directorate, 2005) and see correction notes re rights of way on the website||link|
|271||Cross Compliance guidance 2010 (Rural Payments Agency)||link|
|271||Entry Level Stewardship Handbook (Natural England NE226, 3rd edition, 2010)||link|
|271||Environmental Protection Act 1990: Code of Practice on Litter and Refuse (Defra, 2006)||download|
|271||Higher Level Stewardship Handbook (Natural England NE227, 3rd edition, 2010)||link|
|271||Managing public access - a guide for farmers and landowners (Countryside Agency CA210, 2005)||link|
Supplement to the text of Chapter 9
|237||9.1 In Herrick v Kidner and Somerset CC (2010), Cranston J said (obiter) that the authorities establish ‘a number of principles with regard to an obstruction of the highway: 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.’ (Para 33.)||link to judgment|
|239||9.2.1 Mayor, Commonality and Citizens of the City of London v Samede, Barda, Ashman and persons unknown (2012). Protestors set up a camp consisting of about 175 tents on highway land outside St Paul's Church in London. The claimant authority sought an order for possession of the land, a declaration that under common law or under HA 1980 s 143 it was lawfully entitled to remove tents, and an injunction preventing the defendants from interfering with the removal. The protestors claimed that the granting of the relief sought would constitute and infringement of their rights under Article 10 (Freedom of expression) and Article 11 (Freedom of assembly) of the European Convention of Human Rights. The court held that that in the light of the fact that the presence of the camp was incompatible with the lawful function and character of the land as a highway; the interference with the rights (under Article 9) of worshipers attending the church, the nuisance caused by noise and smell and the damage to local trade, the interference with the claimants' rights under Articles 10 and 11 was proportionate, lawful, and justified. The relief sought was granted.||link to judgment|
|240||9.2.3 In Herrick v Kidner and Somerset CC (2010), Cranston J said ‘In my 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 the right of passage or other amenity rights because of its psychological impact.’ (Para 47.) (Gateway constructed at entrance to drive leading to a country house consisting of three square, brick pillars, with a single gate for pedestrians on one side of the central pillar and double gates for vehicles on the other side; gateway held to constitute obstruction of public footpath; Crown court (instead of ordering the removal of the central pillar and the gates, and the erection of a finger post indicating a public footpath) should have required total structure to be removed.)||link to judgment|
|243||9.3 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
|244||9.3 Advice formerly in circular 2/1993 is now, for authorities in England, in Defra circular 1/09, chapter 6.||download circular 1/09|
|258||9.7.2 Guidance for enforcers in England on dangerous dogs law has been published by Defra.||download the guidance|
|261||9.8.2 HA 1980 s 147, subsections (2A) and (2B), added by CRWA 2000 s 69, provide that in exercising the power under section 147 to authorise a gate or a stile, an authority must have regard to the needs of persons with mobility problems and empowers the Secretary of State to issue guidance on this.
In Wales the provision was brought into force on 1 April 2007: Countryside and Rights of Way Act 2000 (Commencement No.9 and Saving) (Wales) Order 2006. The Welsh Assembly Government has issued statutory guidance to local authorities in Wales.
In England the provision was brought into force on 1 October 2007: Countryside and Rights of Way Act 2000 (Commencement No. 14) Order 2006. Defra has issued non-statutory guidance to local authorities in England.
link to Welsh order
download the Welsh guidance
link to English order
download the English guidance
|261||9.8.2 Extended advice to authorities in England on stiles and gates is included in Defra circular 1/09, paragraphs 6.7 to 6.11||download circular 1/09|
|261||9.8.2 Guidance on structures was published by Defra in October 2010.||download the guidance|
|261||9.8.2 As to the powers of a highway authority under HA 1980 s 66 to erect structures (e.g., bollards, railing, fences) that prevent access across a footway to adjacent land (and consideration of parallel powers under ss 80, 124 and 184) see Cusack v London Borough of Harrow (2011)||link to judgment|
|262||9.8.2 In Kind v Northumberland CC (2012) it was 'not seriously disputed' by the parties, and it was accepted by the court, that in the phrase 'other gates, stiles or other works' in HA1980 s 147(1), 'other works' includes a cattle grid.|
|265||9.8.5 Coates v Crown Prosecution Service (2011) was an appeal against conviction for riding a SEGWAY on a pavement contrary to section 72 of the Highways Act 1835. Munby LJ described a SEGWAY as “a technologically advanced form of personal transportation consisting of a small gyroscopically stabilised platform mounted on two wheels, on which the traveller stands, powered by a battery driven electric motor. A vertical joy-stick is used to steer. Speed is controlled by leaning forward (to go faster) or standing up straight (to slow down). Its maximum speed is 12½ miles per hour”.
The court considered the provisions in section 72 in two parts. The first was the provision that it should be an offence ‘ … if any person shall ride upon any footpath or causeway by the side of a road or set apart for the accommodation of foot passengers’.
The court held that :
(a) ‘ride’ was not confined to riding a horse;
(b) ‘ride’ connoted being on or in the thing being ridden;
(c) “'To be carried along on a wheeled contraption or machine, whether powered or not, can be, within the meaning of section 72, to ride”;
(d) “You do not have to be seated to be riding”.
The court concluded that the accused was, within the meaning of section 72, riding the SEGWAY, and so was guilty of an offence under this first part.
The second part was the provision that it should be an offence to ‘drive any … carriage of any description … upon any such footpath’.
The court held that :
(a) section 85(1) of the local Government Act 1888 enacted that ' … Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highways Acts'. Since a SEGWAY came within the term 'and other similar machines', and the 1835 Act 'is an "always speaking" statute' (its provisions apply notwithstanding that the meaning attached to terms might change over time), a SEGWAY was a carriage within the second limb of section 72; and,
(b) the accused had 'driven' the SEGWAY, (“’drive’ for the purposes of section 72 has quite a wide meaning. The ‘driver’ may be in or on the thing being driven but need not be, as the example of the drover shows. One drives a motor cycle by sitting on it, just as one drives a car by sitting in it, but the coachman of a stage coach, like the Victorian cabbie on his Hansom, is driving the horses although seated on the coach rather than the horses.” Per Munby LJ)
The court concluded that the accused was guilty of an offence under the second part of the section. The appeal against conviction was therefore dismissed.
The court also held that in the charge before the District Judge, that the accused 'willfully rode a motor vehicle, namely a SEGWAY, upon a footpath … contrary to section 72 of the Highways Act 1835', the words 'motor vehicle' were surplusage, since neither limb of the section required that the vehicle ridden/driven should be a motor vehicle.
|link to judgment|