The Ramblers’ Association v Coventry City Council

Highway authority – Gating order – Variation – Defendant authority making gating order to reduce persistent crime and anti-social behaviour – Defendants varying order – Whether footpath fulfilling conditions for making order – Whether defendants erring in approach to restrictions – Whether variation lawful – Application dismissedThe claimant association applied under section 129D of the Highways Act 1980 to quash two gating orders that the defendant highway authority had made, under section 129A of the 1980 Act, in respect of the same footpath. The claimant argued that the defendants had no power to make the orders and sought a declaration that they had no power to install and operate or maintain locked gates, or any other barriers, across the footpath.Gating orders had been introduced into the 1980 Act when Part 8A was inserted by section 2 of the Clean Neighbourhoods & Environment Act 2005, which came into effect from 1 April 2006. Part 8A empowered highway authorities to make, vary and revoke orders restricting the public right of way over highways in their areas, and enforce those restrictions by physical barriers, for the purposes and on the conditions prescribed by the statute. The defendants had made the first order on the basis that they had been satisfied that the existence of the highway was facilitating persistent criminal offences or anti-social behaviour within section 129A(3)(b). The second order was made purportedly, under section 129F(2), to vary the original order in order to reduce the restriction imposed by the order since the defendants were satisfied that it was no longer expedient for the purpose of reducing crime or anti-social behaviour.The issues for the court included, inter alia whether: (i) a reasonable authority, properly directing themselves in law could reasonably have been satisfied, on the evidence, that section 129A(3) conditions had been fulfilled in respect of the footpath; (ii) the defendants had erred in law in their approach to the extent of the restrictions to be imposed on the public right of way over the footpath; and (iii) the second order had been made for purposes for which the powers of variation under section 129F were available.Held: The application was dismissed.(1) The defendants had not misdirected themselves in law in deciding whether the section 129A(3) conditions had been fulfilled they had not reached a conclusion based upon the evidence that no reasonable authority could have reached. When considering whether the existence of the highway was facilitating persistent criminal offences or anti-social behaviour within section 129A(3)(b), a highway authority had to consider the position as at the date upon which the order is made. The word “persistent” in section 129A(3)(b) was an ordinary English word, commonly understood to mean “continuing or recurring; prolonged”, which did not require further definition. In the instant case, there had been no basis for suggesting that the defendants fell into error in that regard, since all the evidence suggested that the footpath had a propensity to facilitate crime and anti-social behaviour, which had to be addressed by a gating order. (2) The defendants had not erred in their approach to the extent of the restrictions in the second order, which, on the evidence, were reasonably necessary to curb crime and anti-social behaviour. Section 129A(3)(c) required the defendants be satisfied that “it is in all the circumstances expedient to make the order for the purposes of reducing crime or anti-social behaviour”. What could be expedient would depend upon all the circumstances; the utility, cost and practicality of a lesser restriction were all factors that could be taken into account when considering whether to impose a blanket restriction. (3) The defendants could use section 129F(2) to relieve from restriction part of a footpath that they should not have restricted. When considering whether a variation should be made, the starting point was that the restriction existed. The question then was whether the extent of the restriction could be justified in the light of existing circumstances.Ross Crail (instructed by Zermansky & Partners, of Leeds) appeared for the claimants; Simon Bird (instructed by the legal department of Coventry City Council) appeared for the defendants.Eileen O’Grady, barrister