QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mr B Herrick and Mrs D Herrick
|- and -
|(1) Peter Kidner
(2) Somerset County Council
George Laurence QC and Ross Crail (instructed by Zermansky & Partners) for the First Respondent
Trevor Ward (instructed by Somerset County Council) for the Second Respondent
Hearing dates: 25 and 26 January 2010
Crown Copyright ©
Mr Justice Cranston:
"We further find that, by the time that authority was taken away, the gates had not been "kept unlocked" because of continuing problems with the release mechanism which resulted in difficulties opening the gates, so that the terms on which the authority had been given had not, in fact, been met": para 33.
The court went on to find that there was no lawful authority for the gates and nor had the Council disempowered themselves from taking further action under section 143. It followed that the structure was an alleged obstruction to which section 130A applied: para 34.
" We heard evidence from many witnesses who have walked in the area for many years, and are familiar with the location both before and after the structure was built. We found there to be a general consensus that the actual usable width of the footpath was not reduced by the erection of the pillars, which were sufficiently wide apart to accommodate the previous usable width of the footpath at that point."
On the expert evidence it had heard, the court found that the width of the footpath at the point where it is crossed by the gates was at least 8 metres wide. It followed that the footpath was wider than the double gates, and that two of the pillars at least, and part of the fly wall, were situated on the footpath itself and caused an obstruction.
" … Whether it does so or not is not only a question of fact, but also requires us to determine what is meant by that subsection: does it cover any obstruction which actually prevents passage over any part of the highway, as contended by the Respondents, or should there be a more limited interpretation of what amounts to significant interference taking an objective view, as contended by Mr Mould QC on behalf of the appellants?
 An obstruction which significantly interferes with the exercise of public rights of way over any part of the way falls within section 130B(4)(c). That will certainly be the case where it prevents passage over part of the way."
Thus the court found that parts of the structure were on the footpath and did significantly interfere with the exercise of public rights of way over it. Those parts of the structure on the footpath included at least the first two pillars and the gates mounted on them.
"Did we err in law in concluding in paragraph 34 of our Judgment and for the reasons given in paragraphs 30 to 34 thereof that, for the purposes of section 130B(4)(a) of the 1980 Act, the obstruction was without lawful authority and/or that the Second Respondent as highway authority was able to exercise its powers under section 143 of the 1980 Act to secure its removal?
Did we err in law in determining in paragraph 51 of our Judgment that, for the purposes of section 130B(4)(c) of the 1980 Act, an obstruction which actually prevents passage on foot over any part of the highway significantly interferes with the exercise of public rights of way over that way?"
On behalf of the Council the Crown Court has posed three additional questions: (questions 3-5):
"Did we err in law in finding in paragraph 53 of our Judgment that, having found that the criteria of section 130B(4) were satisfied and having decided to exercise our discretion to make an order, we had the power under section 130B(2) of the 1980 Act to specify lesser steps than the removal of all parts of the Structure?
In the event that the High Court answers the previous question in the negative, did we nevertheless err in law, in all the circumstances of the present case, in exercising our powers under section 130B(2) so as not to require the Second Respondent to take steps to secure the removal of the totality of the Structure?
Did we exceed our powers under section 130B(2) of the 1980 Act in ordering the Second Respondent to install a fingerpost as stated in paragraph 57(2) of our Judgment?"
"(1) Any person who alleges, as respects any highway……
(a) that the highway falls within subsection (2) below, and
(b) that it is obstructed by an obstruction to which this section applies,
may serve on the highway authority notice requesting them to secure the removal of the obstruction from the highway……
(2) A highway is within this subsection if it is –
(a) a footpath…
(3) [T]his section applies to an obstruction of the highway if the obstruction is without lawful authority and either -
(a) the powers conferred by section 143…below are exercisable in respect of it…"
"(2) An order under this section is an order requiring the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction."
There is a right of appeal to the Crown Court: s.317(3).
"(4) [T]he court may make an order under this section if it is satisfied-
(a) that the obstruction is one to which section 130A above applies…,
(b) that the way obstructed is a highway within subsection (2) of that section, and
(c) that the obstruction significantly interferes with the exercise of public rights of way over that way."
If the court is satisfied about the fulfilment of the three conditions, it is a matter of discretion whether it should proceed to make an order – "the court may make an order" – requiring the highway authority to secure the removal of the alleged obstruction: s. 130B(2). Upon the hearing of a section 130B application, the person who is responsible for the obstruction to which the application relates has a right to be heard by the court in respect of the matters mentioned in section 130B(4): s 130C(6).
"(1)Where a person is convicted of an offence under section 137 above in respect of the obstruction of a highway and it appears to the court that -
(a) the obstruction is continuing, and
(b) it is in that person's power to remove the cause of the obstruction,
the court may, in addition to or instead of imposing any punishment, order him to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for removing the cause of the obstruction."
" I can see some force in the Crown Court's view that whether an unlocked gate constitutes a significant interference with a right of way may depend on the particular circumstances. It may be possible to envisage circumstances in which an unlocked gate may not constitute a significant interference within section 130B(4)(c). However, that clearly was not the situation in the present case ... If it were necessary for me to decide this issue I would accept the submission of Ms. Crail that once it was established that the gate across the right of way was locked for a substantial part of the time, the Crown Court would have been bound to conclude that it constituted a significant interference and that the precondition for making an order under section 130B(4)(c) was satisfied. As she put it, this is not negated by the fact that from time to time the gate might be found unlocked or even open."
"[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held …": at 224.
"That user may in fact extend, to a limited extent, to roaming about on the highway, or remaining on the highway. But that is not of the essence of the right. That is no more than the scope which the right might in certain circumstances have, but always depending on the facts of the particular case. On a narrow footpath, for example, the right to use the highway would be highly unlikely to extend to a right to remain since that would almost inevitably be inconsistent with the public's primary right to pass and repass" (at 256 E).
Lord Slynn dissented. Although also in the minority Lord Hope said the test was what was ordinary and reasonable use, but in the context of using the highway, as a highway, in the exercise of that right (at 272 G-H).
" … The flaw in this argument is that as a matter of law members of the public are entitled to utilise the full width of any footpath over which they have rights of way, subject to a very narrow de minimis exception: see Hertfordshire CC v Bolden (The Times, 9th December 1986) and Wolverton UDC v Willis  1 All ER 243. The Gillinghams' argument takes no account of the width of the enclosures mentioned in the Definitive Map. They do not appear to understand that the public is entitled to enjoy the full width of the land between the enclosures (as the judge correctly held) … "
"It is enough to say that it is quite clear that a valid licence cannot be given to perform an unlawful act. The council cannot change the nature of a highway. Once a highway, it is always a highway, and in any event if they did give any permit or licence they can withdraw it at will, and the institution of the proceedings would be a withdrawal" (at 1606F).
". The Crown Court had to look at the whole highway. This it did. It correctly found that the highway included the whole of the width between the enclosures, but that does not mean that the council had an obligation to level everything and make all parts of it like a motorway, flattening banks so that vehicles could pass over them. The question was whether the highway as a whole was reasonably passable for ordinary traffic. In truth, what Mr Kind is interested in is only the verges. I cannot accept his submission that the facts of Burnside are so different from the present case that it is dangerous and erroneous to take the "simple principle" of Burnside and apply it to this case …
. There is in my judgment no inconsistency between the finding that Prestwick Carr is in a reasonable state of repair to serve the ordinary traffic using it and the finding that the verges are not suitable for all traffic to pass along. The mere presence of verges, because they form the part of the highway, does not require the highway authority as part of its maintenance obligation to extend the metalled carriageway over them. Whilst it may be desirable for the metalled part of the road to be wider, that is irrelevant in assessing the road's state of repair."
ISSUE 1: "SIGNIFICANT INTERFERENCE"
The appellant's case
ISSUE 2: LAWFUL AUTHORITY
(a) The appellants' case
ISSUE 3: PARTIAL REMOVAL OF THE GATEWAY