Chapter 19
Interferences with Public Highways INTRODUCTION
19.1 Interferences with the public’s right to pass and re-pass may take many different forms. They might be obstructions, the creation of dangers or indeed damage to the highway itself. Such interferences can carry both civil and criminal implications. The two principal forms of wrong discussed here are, firstly, offences and duties created expressly by the provisions of Part IX of the HA 1980, and, secondly, public nuisances. There is some overlap with the torts of trespass and negligence, but these are only considered by implication in this section.
THE HIGHWAYS ACT 1980
19.2 The policing of interferences largely falls to the local Highway Authority.1
Section 130 of the HA 1980 places them under a statutory duty to assert and protect the rights of the public to use and enjoy public rights of way, thus the powers to prevent and police obstructions are largely funnelled into the hands of the Highway Authority. That being said, local councils which are not the local Highway Authority may also assert and protect the rights of the public,2and parish councils may notify the Highway Authority of obstructions, which will place the Highway Authority under a duty to act, save in circumstances where it is satisfied that the representations are incorrect.3
19.3 Members of the public too are able to notify the Highway Authority of an obstruction and may serve a notice, requesting the removal of the interference (although subject to certain limitations).4The Highway Authority must then serve
1As a generalisation this is correct, but note HA 1980, s 130(2) and (6). It also goes without saying that private individuals will be able to seek redress themselves in circumstances where the obstruction or interference has caused loss (see paras 19.25–19.30 on public nuisance and, by implication, an action in negligence).
2HA 1980, s 130(2). Note the different wording of the subsection, the council is not placed under a ‘duty’ as the Highway Authority is under s 130(1), the council is only empowered and ‘may assert and protect the rights of the public’.
3See HA 1980, ss 130(6) and 130A(1), but note that such a request from a member of the public may not be sent if the obstruction complained of is a building or works for the construction of a building. For the procedure where a request is served by a member of the public, see s 130A(6) in respect of the steps the Highway Authority must take.
4HA 1980, s 130A. Note the meaning of ‘highway’ within the section includes footpaths, bridleways, restricted byways and byways open to all traffic. Also note the limitations under s 130A(3) and (4).
184 Restrictions on the Use of Land
a notice within one month on every person whom it appears at that time is responsible for the obstruction.5Where the obstruction endures, the member of the public serving the original notice is empowered to take further steps to secure the removal of the obstruction by applying to a magistrates’ court for an order requiring the Highway Authority to take specified actions in relation to the interference. Where such an application is made, there may be costs consequences which may be considerable, particularly in the case where there is an appeal from the decision of the magistrates.6
19.4 Notably, however, the duty under section 130 of the HA 1980 to assert and protect the public’s right to use the highway does not give rise to an action for damages where the Highway Authority fails to remove obstructions and somebody thereby injures himself or suffers loss. Section 130 cannot be read so as to give rise to a general duty to remove obstructions or carry out precautionary inspections of the highway.7
19.5 It is noteworthy that there will in many cases be an overlap between offences created under the HA 1980 or some other Act of Parliament and the common law offence of public nuisance. Where the Highway Authority has available to it an offence under statute, it should ordinarily charge the matter under that Act, rather than as a public nuisance.8The availability of public nuisance is nonetheless of importance, particularly in cases where, for whatever reason, a Highway Authority fails to prosecute an interference with a highway and an adjoining landowner seeks compensation and can prove special damage.
5Note the word ‘responsible’ will necessarily include the creator of the interference, but will include the person who has possession or control of the obstruction, which will include the owner. See HA 1980, s 130A(7).
6As to the notices that it must serve, see HA 1980, s 130A(6). As to the procedure where the obstruction is not removed, see ss 130B and 130C. Those making an application to a magistrates’ court must exercise particular care, given the costs implications under Magistrates’ Court Act 1980, s 64 which may rebound onto the unsuccessful litigants. Also note, as to costs, the provisions of s 130D, which provides that before exercising powers in relation to costs, the Court shall have ‘particular regard to any failure by the Highway Authority to give the applicant appropriate notice of, and information about, the grounds relied on by the authority’.
7See Ali v The City of Bradford Metropolitan District Council [2010] EWCA Civ 1282. The claimant had tripped on what was said to be a stretch of footpath which had not been properly maintained. She claimed damages and based her action on a breach of statutory duty under HA 1980, s 130 and additionally brought a claim in nuisance. The court found that the pleadings contained no grounds for bringing the claim. It concluded that s 130 did not give rise to a civil action for damages. To require a local Highway Authority to regularly inspect all highways within its area would place excessive financial burden upon the authority, and there was no express provision placing such a duty upon them. Note, however, that there are provisions within the HA 1980 which do place a duty upon the Highway Authority to remove obstructions. See e.g. s 150 in relation to snow and soil.
8See R v Rimmington; R v Goldstein [2005] UKHL 63, [2006] 1 AC 459 at [31]–[40]. It may be appropriate to charge the matter as a public nuisance in some circumstances where a statutory offence is in existence, but generally the courts have said that good practice and respect for the primacy of statute will mean that the offence should be charged under the relevant Act of Parliament.
PROVISIONS OF THE HIGHWAYS ACT 1980
19.6 It goes without saying that recourse to court action is ordinarily a last resort. Where structures have been erected on a highway, the Highway Authority will ordinarily serve a notice upon the person having control of the structure to remove it. Where the notice is not complied with, the authority itself may remove the obstruction and recover expenses from the party involved.9Similarly where something is deposited on the highway so as to give rise to a nuisance, the Highway Authority is entitled to serve a notice requiring its removal on the person so depositing the item. Where that person fails to comply, enforcement will be by way of complaint to a magistrates’ court, unless there are reasonable grounds for believing that the thing so deposited constitutes a danger to highway users and that the thing in question ought to be removed without delay.10There are other powers possessed by the Highway Authority to deal with actions likely to constitute a nuisance to highway users.11
19.7 Where the authority fails to secure compliance with a notice or where it otherwise decides that it wishes to prosecute, it may pursue an action for certain offences created by the HA 1980. This chapter does not seek to deal with all of the relevant offences created by the statute, but instead seeks to focus on the offences most likely to arise in a development context. Broadly, Part IX creates offences which can be grouped into the following: (a) offences protecting the surface of the way from damage (sections...
