Newly erected fencing reducing width of bridleway – Appellant serving notice under section 56(4) of the Highways Act 1980 and section 82 of the Environmental Protection Act 1990 – Whether premises “out of repair” – Whether premises “in such a state to be a nuisance” – Crown Court finding no breach of statutory duty – High Court dismissing appeal
In 1983 the local planning authority, Northern Hertfordshire District Council, granted planning permission for the construction of new houses at Royston, Hertfordshire, on a site which abutted a bridleway. The respondent council were responsible for the maintenance of the bridleway as the relevant highway authority. The houses were built in 1984 and 1985 and fencing was erected to enclose their gardens, which encroached on to the bridleway significantly reducing its width. It was later discovered that the encroachment had not been acted upon by the council as a result of maladministration. Local residents found their use and enjoyment of the bridleway inhibited by the construction of the fencing.
The appellant, the secretary of a district footpath society, in December 1995 served a notice under section 56(4) of the Highways Act 1980 and another under section 82 of the Environmental Protection Act 1990 asserting that the obstruction constituted a statutory nuisance. The council served a notice in reply under section 56(4) of the 1980 Act admitting their responsibility for maintenance, but simultaneously denying that the bridleway was out of repair. The magistrates’ court upheld both notices served by the appellant, ordered the repair and reinstatement of the bridleway and fined the council £2,500. The council appealed to the Crown Court, which allowed their appeal. It was held that the complaint in essence was of highway obstruction, not disrepair. The provisions of section 56 of the 1980 Act were inappropriate and, although the obstruction of a highway could constitute a public nuisance at common law, that was not synonymous with statutory nuisance as defined by the 1990 Act.
Held The appeal was dismissed.
1. The Crown Court had been entitled to look at the reality of the situation, which was that the existence of the fence and vegetation was an obstruction and not want of repair. Therefore it had been appropriate to refuse relief under section 56 of the 1980 Act on the ground that the presence of vegetation within fencing obstructive of part of a bridleway ought not be regarded as rendering it “out of repair”.
2. It had also been appropriate for the Crown Court to refuse relief under section 82 of the 1990 Act on the ground that the definition of “statutory nuisance” could not properly be construed as encompassing an admitted nuisance at common law in the form of an obstruction which interfered with public enjoyment of part of a bridleway. Therefore the fence and the vegetation did not render the bridleway “in such a state to be a nuisance” within the scope of the 1990 Act.
The appellant appeared in person; Rhodri Price-Lewis (instructed by the solicitor to Hertfordshire County Council) appeared for the respondent authority.
