The council obtained a county court order against the defendants to remove a wooden gate and concrete hanging post, and an injunction prohibiting them from placing a gate, fence or other obstruction on a public footpath. Attempting to defuse the dispute, the council had written appearing suggesting that an 8 foot gap was provided for public use. The county court judge held that the public were entitled to the full width of the footpath. The council were not estopped from asserting the rights of the public; any acquiescence by them in unlawful obstruction of footpaths and rights of way could not affect the position. At a point where the track was 16 feet 6 inches wide, the defendants maintained that there was an 8 feet wide gap between the gate and the opposite hedge. The judge rejected that, since the gate and concrete post there obstructed the public from enjoying the full width of the footpath.
Held: Once the judge was satisfied that the defendants had obstructed a public footpath, he was entitled to order them to take the gate and concrete post down ‘so that the public could enjoy their rights without obstruction’. As to estoppel, the mere consent of a highway authority to an obstruction on the highway was ineffectual for the purposes of legalising it, and where a statute, like section 130 of the 1980 Act, enacted for the benefit of a section of the public, imposed a duty of a positive kind, the person charged with the performance of the duty could not by estoppel be prevented from exercising statutory powers. As to the argument that the judge ought to have disregarded the encroachment of the gate as de minimis, Brooke LJ said: ‘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 [1962] 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).’
Judges:
Brooke LJ, Sedley LJ
Citations:
[2000] EWCA Civ 105
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Kind v Northumberland County Council Admn 14-Mar-2012
The appellant landowner had a public bridleway over his land. It passed over an old cattle grid. He had constructed a gate to the side of the track. It was not part of the public highway. He now appealed from a refusal of an order for the Council to . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 31 May 2022; Ref: scu.147138
