Herrick and another v Kidner and another

Public footpath – Right of way – Highway authority – Appellants erecting gateway over footpath without lawful authority – Member of public complaining that highway authority failing to secure removal of obstruction – Court ordering removal of parts of obstruction as significantly interfering with public right of access — Whether court erring in law – Appeal dismissedThe appellants constructed a gateway across a public footpath. The gateway comprised three brick and stone pillars flanked by brick fly walls. The pillars were supported by iron gates; there was a pedestrian gate between the first and second pillars and electronically-controlled double gates between the second and third pillars. The second respondent highway authority issued two notices, under section 143 of the Highways Act 1980, requiring the appellants to remove the gateway as an unauthorised structure. The appellants failed to comply. The second respondents threatened enforcement action but subsequently informed the appellants by letter that the gates would not be removed as long as they remained unlocked and preferably open.Meanwhile, the first respondent served a notice, under section 130A(1) of the 1980 Act, requesting the second respondents to take steps to secure the removal of the obstruction. He subsequently applied to the magistrates’ court, under section 130B(1), for an order requiring the second respondents to remove the gateway. The judge ordered the removal of those parts of the structure that lay within 6m of the point at which the double gates met. The appellants appealed to the crown court, which found, inter alia, that: (i) there had been no lawful authority for the gates; and (ii) parts of the structure were on the footpath and significantly interfered with the exercise of the public rights of way. The court accordingly ordered the second respondents to remove certain parts of the gateway and to erect a fingerpost. The appellants appealed by way of case stated, contending that the court had erred in law in respect of its findings on lawful authority and significant interference. Held: The appeal was dismissed.The statutory purpose of section 130A-D was to enable aggrieved members of the public to compel a highway authority to protect the rights of members of the public to use a footpath in a reasonable manner and to act against what was perceived to be an obstruction. The relevant provisions had to be construed consistently with the breadth of a highway authority’s power under section 143. In particular, it was necessary to give effect to the phrase “significantly interferes with the exercise of public rights of way” in section 130B(4)(c). The crown court had been right in its construction of the legislation and in concluding that those parts of the gateway impinging on the footpath significantly interfered with the exercise of public rights of way.Before the court could make an order under section 130B, it had to be satisfied that: (i) the obstruction was actionable under section 143; and (ii) it was a structure capable of causing obstruction. Moreover, the structure must have been erected on the highway without lawful authority.Any obstruction that significantly interfered with the public’s ability to exercise its right to pass and repass and to enjoy amenity rights over the footpath as a whole would be caught by section 130B(4)(c). The crown court had not erred either in its approach or its conclusion that the gateway prevented public passage and the enjoyment of amenity rights over the footpath.To be entitled to make an order under section 130B, the court had to be satisfied that the obstruction was without lawful authority and that the powers conferred by sections 143, 149 or 154 of the 1980 Act were exercisable in respect of it. In the instant case, the authority had had no power to grant authority through its letter permitting the gates to be maintained in a closed position as long as they were unlocked. Any such authority was conditional, and that condition had not been satisfied. Moreover, it was clear from subsequent correspondence that any purported authority had in effect been withdrawn: Hampshire County Council v Gillingham [2000] EWCA Civ 105; Harvey v Truro Rural District Council [1903] 2 Ch 638; and Redbridge London Borough Council v Jaques [1970] 1 WLR 1604 considered.There was nothing in the wording of section 130B(2) that required a highway authority to take steps other than “for securing the removal of the obstruction”; nor was the court empowered to oblige the removal of part only of the obstruction. Under section 130B(4)(c), any structure erected within the legal extent of the footpath, and which prevented public passage or the enjoyment of amenity rights over it, significantly interfered with the exercise of public rights of way. Highway authorities that refused to take action to secure the removal of such structures might be subject to an order under section 130B. The crown court should have made that order with regard to the totality of the structure obstructing the full extent of the footpath. The erection of the fingerpost was beyond the court’s power under section 130B(2). However, given that the authority had had power to erect the fingerpost, there was no need to remit the matter to the crown court.Tim Mould QC (instructed by Everys, of Exmouth) appeared for the claimants; George Laurence QC and Ross Crail (instructed by Zermansky & Partners, of Leeds) appeared for the first respondent; Trevor Ward (instructed by legal department of Somerset County Council) appeared for the second respondent.Eileen O’Grady, barrister