Herrick and another v Kidner and Somerset County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 17 February 2010 |
| Neutral Citation | [2010] EWHC 269 (Admin) |
| Docket Number | Case Nos: CO/9368/2009 and CO/9411/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 February 2010 |
[2010] EWHC 269 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : Mr Justice Cranston
Case Nos: CO/9368/2009 and CO/9411/2009
Hearing dates: 25 and 26 January 2010
Mr Justice Cranston:
INTRODUCTION
This case concerns public access to a footpath in Somerset. The essential issue is the extent to which a member of the public can have removed a gateway the landowners have built across it. The proceedings are in the form of a case stated from the Crown Court. There is no further appeal from this court. Because of that, as Mr Laurence QC for the first respondent put it, this judgment will effectively lay down the law until such time as it is reversed by legislation or another High Court Judge decides that the judgment is plainly wrong. Moreover the judgment, as Mr Laurence QC also put it, will state the law authoritatively not only in relation to this footpath but in all manner of circumstances up and down the country, in both rural and urban areas. The issue clearly deserves the most careful consideration.
BACKGROUND
Footpath Y24/10 near South Petherton in Somerset passes across land owned by Mr and Mrs Herrick, the appellants. It begins at a point immediately to the east of North Mill Brook, where Barcroft Lane as a public vehicular highway ends, is almost immediately joined by footpath Y24/12, is later joined by footpath Y24/9 and eventually ends at a junction with footpaths Y24/3, Y24/4 and Y24/8. Before the Crown Court the experts agreed that while the historic width of footpath Y24/10 just beyond North Brook Mill was between 8 and 9.25 metres, the useable width is now 3 to 5 metres (Mr Kidner's experts) or 2.8 to 3.7 metres (Mr and Mrs Herrick's experts). In the approach to North Brook Mill the public highway, Barcroft Lane, was variously estimated at between 2.5–2.8 metres.
Mr and Mrs Herrick live in Barcroft Hall, built by the previous owner in the late 1980's. In 2004 they constructed an impressive gateway across footpath Y24/10, consisting of 3 substantial pillars constructed of brick and stone, and flanked by brick fly walls. There was further landscaping of the area around the gates. The pillars of the gateway support iron gates. Between the first and second pillars there is a pedestrian gate, and between the second and third pillars there are double gates. The width of the double gateway into Barcroft Hall is between 4.08 and 4.17 metres (depending on how the measurements are taken). When first installed the double gates between pillars 2 and 3 were electronically controlled by remote control or by intercom to the house. Anyone wishing to pass had to go through the pedestrian gate to the side, or communicate with the house to pass through the double gates. The effect was certainly to obstruct those wishing to walk along footpath Y24/10, and it is conceded by Mr and Mrs Herrick that the structure with the gates operated electronically did amount to an obstruction which significantly interfered with the exercise of public rights of way.
By May 2005, Somerset County Council (“the Council”), the second respondent, and the responsible highway authority in this case, had given notice under section 143 of the Highways Act 1980 (“the 1980 Act”) requiring the removal of the structure “including side gate and stone pillars” within a month. This was not complied with. A further section 143 notice followed in September 2005, with the same lack of result. That notice referred to “unauthorised gates”. In December 2005, the Council issued a summons against Mr Herrick in the Yeovil Magistrates’ Court alleging an offence contrary to section 137 of the 1980 Act. On 23 June 2006 the court convicted Mr Herrick, gave him an absolute discharge and ordered that the electronic mechanism to the gates be disabled in 56 days. The court declined to order the removal of the gates themselves. It does not appear that they were invited to order the removal of any pillars. However, the gates were not kept unlocked owing, it appears, to continuing difficulties with the mechanism.
Following the prosecution, on 11 September 2006, Mr Kidner, a member of the public and the first respondent, issued a notice under section 130A(1) of the 1980 Act to secure the removal of an obstruction of footpath Y24/10, at the junction with Barcroft Lane. On 10 January 2007 he gave notice to the Council stating that he was not satisfied that the obstruction had been removed and informing the Council that he intended to apply to the Magistrates’ Court for an order requiring it to take steps for securing the removal of the obstruction. Five days later the Council served a section 143 notice on Mr and Mrs Herrick, requiring the removal of the structure within one month.
On 21 February 2007 the Council wrote to Mr and Mrs Herrick that the “gating obstruction” on the footpath would involve removing the double gates, but that it would suspend its enforcement action for two weeks. On 1 March, the Council wrote again to Mr and Mrs Herrick, informing them that the Council would “not be removing the gates on [footpath] Y24/10. The gates must remain unlocked (preferably open) …” The minutes of the South Petherton Parish Council dated 13 March 2007 record, under the heading “District Councillor's Report”, that the Council (i.e. Somerset County Council) “say they have discharged their duty relating to the gates of Barcroft Hall and the gates should be kept locked open at all times.”
On 12 April 2007 the chief executive of the Council, Alan Jones, wrote to Mr and Mrs Herrick's solicitors pointing out that the Council decided not to pursue the removal of the large gates across footpath Y24/10, but that the right of way appeared to members of the public to continue to be obstructed “and proceedings have now been taken against the Council by a member of the public in respect of what is perceived to be an obstruction. I do not understand your clients’ objection to the suggestion that the gates should remain open”. The letter continued that it was not agreed that an unlocked gate did not constitute an obstruction. In a further letter dated 10 May, Mr Jones wrote that the Council still regarded the gates and pillars as an obstruction to the public right of way. “[T]he County Council does not oppose the action taken by Mr Kidner, nor could it when the claim is brought on the basis that the gates and pillars amount to an obstruction. This is the view consistently held by the County Council …”
Mr Kidner had, in fact, commenced proceedings in the South Somerset Magistrates’ Court on 8 March 2007, complaining of the failure of the Council to secure the removal of the offending structure. The case was heard in South Somerset Magistrates’ Court by District Judge Parsons, who gave his ruling on 15 October 2007. It was to the effect that those parts of the structure had to be removed which lay within a distance of 6 metres centred on the point where the double gates meet. Mr and Mrs Herrick then appealed to the Crown Court under section 317 of the 1980 Act. Before the Crown Court none of the parties sought to uphold the order made in the Magistrates’ Court.
The Crown Court appeal was by way of rehearing. HH Judge Longman sat with two lay justices for a five day hearing beginning on 8 December 2008. The judgment is dated 9 February 2009. The court found that the Council's letter of 1 March 2007 was written in terms which could only be construed as giving authority for the time being to retain the gates, and that Mr and Mrs Herrick were entitled to and did believe that they had been given authority for the gates to remain if they were kept unlocked: para 33. However, the court found that such authority as was given was subsequently taken away by a decision of the Council following Mr Kidner's notice:
“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.
The court then turned to section 130B(4) of the 1980 Act, whether the structure was an obstruction, and if so, whether it significantly interfered with the exercise of public rights of way over footpath Y24/10. First the court considered the evidence. There was the lay evidence.
“[35] 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...
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