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 pillars erected on the path. After a failure to comply the appellant was prosecuted. The authority then required the gates to be left unlocked, but did not enforce the order. The authority was then itself pursued in an action by the respondent. The appellant took the case to the crown court which said that the question it faced was ‘whether the structure ‘significantly interfered with the exercise of public rights of way over that way’ under section 130 B(4)(c), and said: ‘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.’ It answered that an obstruction of part of the right of way by the pillars was a significant interference.
Held: The court should allow for the psychological effect of the placing across a right of way bollards or similar indications that the land owner considered the land to be private. ‘[A]uthorities establish a number of principles with regard to an obstruction of the highway: first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly, those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.’
The public is entitled to use and to enjoy everything which is in law part of a footpath. The statute allowed gates over public highways, but only for the purpose of restricting animal movements, and it was not open to the authority to permit a gate for other reasons.
‘any structure erected within the legal extent of the footpath, and which prevents public passage or the enjoyment of amenity rights over the area of its footprint, significantly interferes with the exercise of public rights of way. Highway authorities which refuse to take action to secure the removal of such structures may be subject to an order under section 130B.’

Cranston J
[2010] EWHC 269 (Admin), Times 08-Apr-2010, [2010] PTSR 1804, [2010] 3 All ER 771
Highways Act 1980 143 130B(4)(c), Countryside and Rights of Way Act 2000
England and Wales
CitedBagshaw v Buxton Local Board of Health CA 1875
House owners requested an injunction to stop the surveyors of highways removing a low wall and railing enclosing a piece of ground in front of it. The surveyors alleged that the ground was part of a highway and that the wall and railing were an . .
CitedHomer v Cadman 1886
The appellant had come with a band to the bull ring in Sedgley. A crowd formed for about an hour to listen to him. The magistrate found there was an obstruction of the highway. The appellant contended that there was still space outside the crowd and . .
CitedSeekings v Clarke 1961
Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’. . .
CitedTorbay Borough Council v Cross QBD 1995
The highway was 15 metres wide and pedestrianised. Shop owners displayed goods outside their shops, projecting no more than five percent of the total width of the road. The magistrates acquitted them of obstruction.
Held: The appeal was . .
CitedErnstbrunner v Manchester City Council and Another Admn 16-Dec-2009
The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant . .
CitedHarrison v Duke of Rutland CA 8-Dec-1893
H used a public highway crossing the defendant’s land, to disrupt grouse-shooting upon the defendant’s land. He complained after he had been forcibly restrained by the defendant’s servants from doing so. The defendant justified his actions saying . .
CitedDirector of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
CitedSpice and Others, Regina (on the Application of) v Leeds City Council Admn 27-Feb-2006
Landowners sought judicial review of the decision of the highway authority to refuse an application under section 117 of the 1980 Act for a highway to be stopped up under section 116. They said that the highway was unnecessary as such because it was . .
CitedRedbridge London Borough Council v Jaques 1970
An authority cannot authorise an unlawful restriction on the use of land subject to a public right of way. . .
CitedHarvey v Truro Rural District Council 1903
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few . .
CitedHampshire County Council v Gillingham and Gillingham CA 5-Apr-2000
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 . .
CitedBurnside v Emerson CA 1968
A car crashed as a result of running into a pool of storm-water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system, which had become blocked.
Held: The claim succeeded. Diplock . .
CitedHertfordshire County Council v Bolden 9-Dec-1986
A court may allow a de minimis incursion over a public right of way. . .
CitedKind v Newcastle-Upon-Tyne Council Admn 31-Jul-2001
The appellant complained that the local council had failed to maintain a highway. The road was a single track rural highway. The Crown Court allowed for the present-day character of the highway, and the appellant objected. The complainant sought to . .

Cited by:
ApprovedKind 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, Local Government

Updated: 02 November 2021; Ref: scu.401623