Highways Act 1980 — Free passage — Footpath — Respondent owning property adjoining footpath — Respondent keeping two Rottweiler dogs on property — Persons walking along footpath put in fear — Whether presence of dogs instilling fear in passers-by amounted to an obstruction — Whether protrusion of dogs’ heads over fence amounted to physical obstruction — Magistrates finding in favour of respondent — Appeal by way of case stated by local authority dismissed
The respondent was owner and occupier of the property known as Old Barn Bungalow, which adjoined footpath NS 227 at Woodhill, Meopham, Kent. For 100 m along the boundary of the footpath, the fence of his property was comprised of post and rail fencing filled with large gauge wire mesh. On average the fence was 4 ft above ground and the footpath was on average between 3 and 4 ft wide. The respondent kept two Rottweiler dogs on his property. The rights of way officer for Gravesham Borough Council was walking along the footpath but turned back because the Rottweilers were jumping at the fence 3 ft from where she was passing by. At times the dogs’ paws were resting on the top rail and their heads were over the top with the jowls protruding some few inches beyond the line of the fence.
Informations were laid before the magistrates of two other occasions where walkers were disturbed by the dogs’ presence. It was contended that their presence amounted to an obstruction in as much as they instilled fear in persons walking along the path. It was further contended that the protrusion of the dogs’ heads over the footpath coupled with their behaviour amounted to a physical obstruction of the footpath. The respondent submitted that the presence of the dogs was a lawful use of his property. The justices found that the situation was not covered by any authority. They decided that whether a situation amounted to an obstruction must be a question of fact for the tribunal on the facts of each case. In the present instance they decided that although the aggressive and intimidating behaviour of the dogs instilled fear, it would stretch the meaning of the word too far to regard the creation of fear as amounting to an “obstruction”. They also decided that there was no physical obstruction despite the protrusion of the dogs’ heads. They found that the respondent was acting lawfully in using his own property to exercise his dogs. It was equally clear that he was doing so deliberately and the justices had no hesitation in finding that his actions were “wilful” in that sense.
Held The appeal was dismissed.
1. Counsel’s researches revealed no case where it had been alleged that the use of land adjacent to the highway had been said to be an obstruction of that highway.
2. The appellants’ contention that the fear created by the dogs created an atmosphere that was not conducive to any member of the public exercising their right to free passage of the highway. However, that was difficult to reconcile with the words of the statute. The uncertainty of the test and the inconsistent results it would produce militated against such an interpretation.
3. The justices were entitled to find that any protrusion of part of the dogs’ head was indeed so minimal in time and degree that it could not be said to amount to a physical obstruction of the highway.
4. However, if, in the view of the local authority, the use which was being made by the respondent of the property amounted to a common law nuisance, then it was open to them to consider taking steps, either civil or criminal, to put an end to it.
John Bryant (instructed by the solicitor to Kent County Council) appeared for the local authority; Kevin Sparks (instructed by Robin F Clark & Co, of Gravesend) appeared for the respondent.
