Kind v Northumberland County Council

Highway authority — Bridleway – Highways Act 1980 – Cattle grid obstructing bridleway causing public to divert onto private land to by-pass obstruction – Magistrates refusing order requiring removal of cattle grid – Whether local authority having power to authorise cattle grid under section 147 of the Highways Act 1980 — Appeal allowed A cattle grid was situated on a farm track over which the public had a right of way on foot and on horseback. The track was therefore a bridleway and a highway to which the Highways Act 1980 applied. The cattle grid had been installed many years before the track’s designation as a bridleway to prevent animals straying onto the road. The cattle grid extended across the whole width of the track. In order to avoid crossing the grid, it was necessary to pass through a gate provided by the landowner, go around the cattle grid onto private land and rejoin the track through another gate. The landowner was content to allow the public to use the by-pass on foot or on horseback, but the land over which it ran had not been dedicated as part of the highway and the public had no legally enforceable rights. The appellant served a notice on the respondents under section 130A of the 1980 Act requesting them to secure the removal of the cattle grid. When they failed to comply, the appellant applied to the magistrates for an order under section 130B requiring the removal of the cattle grid. The magistrates declined to make an order as the by-pass was a satisfactory alternative. The appellant appealed to the Crown Court. In the meantime, the respondents had authorised the cattle grid under section 147 of the 1980 Act on condition that the bypass remained available for public use. The Crown Court held that the grid had been lawfully authorised so that a condition necessary for the exercise of its jurisdiction under section 130B had not been satisfied but, in any event, it would have declined to exercise its discretion as the bypass was a suitable alternative. The appellant appealed by way of case stated asking for the opinion of the High Court whether it had erred in finding that: (i) the cattle grid had been lawfully authorised and the right of way could be used fully and without any significant interference; and (ii) the public’s ability to circumnavigate the cattle grid by using the by-pass constituted a proper ground to decline to exercise its discretion under s.130B Held: The appeal was allowed. (1) The nature of a public highway was such that the right to use and enjoy it extended to the whole of its length at every point along it. Accordingly, anything that interfered with the right to use a public highway to more than a minimal extent constituted an obstruction which the highway authority might have been called upon to remove. Section 130 imposed a duty on the local authority to assert and protect the public’s right to use and enjoy a highway and section 147(2) contemplated that, when authorising the erection of works, the local authority would impose whatever conditions were necessary to enable the exercise of that right without undue inconvenience. Although the power under section 147 extended to authorising the erection of stiles, gates or other works, it did not permit the erection of works which forced riders, and some walkers, off the bridleway altogether, even for a short distance. Obstructions could not interfere to an undue extent with the right to pass along the highway at the point where they were installed. Parliament had not intended section 147(2) to refer to a path or bridleway as a whole. It concerned partial obstruction. What constituted “undue inconvenience to the public” would vary from case to case. Each case had to be considered on its facts: Hampshire County Council v Gillingham [2000] EWCA Civ 105 and Herrick v Kidner [2010] EWHC 269 Admin) [2010] EWHC 269 (Admin), [2010] PLSCS 52 considered. (2) In the light of the court’s view of section 147, the obstruction in this case could not be properly authorised and had to be treated as unauthorised. It followed that the Crown Court had a discretion whether to the make the order sought, and the case would be remitted to enable it make its own decision. Where an obstruction had the effect of stopping up the highway, powerful considerations would be required to justify the refusal of an order under section 130B to take steps to secure its removal. Section 116 allowed a highway authority to seek an order from the magistrates’ court to stop up/divert a highway. Section 119 gave local authorities the power to divert footpaths/bridleways if they considered it in the interests of the landowner to do so. Both types of order had to conform to the procedure set out in the 1980 Act, required the consent of the landowner over whose land the diversion would pass and created a public right of way along the line of the diversion. The existence of those provisions was an important factor to take into account since, if the court declined to grant the order sought, it would effectively allow the local authority to achieve a similar outcome without the statutory safeguards. It was for the Crown Court to weigh up the competing interests and decide how to exercise its discretion. However, the balance of competing interests did not lie in favour of declining to make the order. Adrian Pay (instructed by Brian Chase Coles) appeared for the appellant; Ruth Stockley (instructed by Northumberland County Council Legal Services) appeared for the respondents. Eileen O’Grady, barrister