Asserting public highway rights

Road iStock 000012245935XSmall 146x219Alan Timms reviews the issues raised and the relevant caselaw when it comes to the assertion of public highway rights by authorities.

As the local highway authority, a county council’s delivery of the service to the public is subject to two basic statutory duties contained within the Highways Act 1980, firstly to maintain those highways which are “adopted” that is maintainable at the public expense (section 41) and secondly, in respect of all highways, to assert and protect the rights of the public to the use of all highways for which they are the highway authority (that is all except trunk roads), to prevent, as far as possible, the stopping up or obstruction of those highways; and to prevent any unlawful encroachment on any roadside waste composed in a highway (section 130).

The duty to assert public rights to use any highway includes institution of proceedings as deemed necessary. Indeed a parish council can represent to the highway authority that a highway has been unlawfully stopped up or obstructed and the highway authority are then placed under a further duty to act unless satisfied that the representation is incorrect.

The first leg of this duty requires an understanding of what the public’s rights are. In summary they are:

  • along a footpath and a footway (pavement) to a road – pedestrian usage only;
  • along a bridleway – on foot, on horseback or leading a horse, and (since 1968) cycling;
  • along a road, on foot, horseback, cycling, and with vehicles, both motorised, and non-motorised.

The case of DPP v Jones [1999] 2.W.L.R 625 had to determine what the rights of passage were and acts incidental to that right of passage. It was concluded that: “the public highway is a public place which the public may enjoy for reasonable purpose, providing the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary rights of the public to pass and repass”.

From this is established the right of peaceful assembly on the highway. As was further stated: “the particular purpose for which a highway may be used within the scope of the public’s rights of access includes a variety of activities which are consistent with what people reasonably and customarily do on a highway”.

The above issue was the subject of one of the most recent high profile cases, that relating to the protest camp set up in St Paul’s Churchyard in London in October 2011. This involved a large number of tents, some 150 to 200 at the time the matter came to court in December 2011.

In the relevant case, City of London v Samede and others [2012] EWHC 34 (QB), the City of London Corporation sought possession of the highway and other open land in the churchyard which had been occupied as a peace camp. The areas of highway involved were largely pedestrian areas and no licence or consent to occupy the land had been granted. The court recognised that there is no statutory right nor at common law had there ever been a right to occupy, control to take possession of highway land from the highway authority.

As the court summed up when granting the Corporation’s claims: “the extent and duration of the obstruction of the highway and the public nuisance inherent in their obstruction would itself warrant making an order for possession. So too would the effect of the camp on the human rights of worshippers at the cathedral, so would the effect on visits to the cathedral”

An earlier case with a similar outcome was that of The Mayor of London v Hall and others [2010] EWHC 1613 (QB) where repossession was granted in respect of Parliament Square Garden across which ran a public highway where a camp was set up protesting against among other things the Afghan and Iraqi wars and worldwide environmental issues.

At the beginning of this article I mentioned the two fundamental duties to which the highway authority is subject. The case of Ali v The City of Bradford Metropolitan District Council [2010] EWCA Civ 1282 concerned whether a highway authority could be liable, by way of an action for nuisance and a breach of the statutory duty to assert and protect public rights, where an accident had been suffered by a pedestrian using a public footpath slipping on an accumulation of mud and debris. It was decided that an individual had no right to sue in tort and that the duty in section 130 of the Highways Act 1980 (that concerned with asserting and protecting the rights of the public to the use and enjoyment of a highway), was not the appropriate cause of action but rather sections 149 and 150 of that Act, which is covered by the group heading “obstructions of highways and streets”.

Sections 130A to 130D of the 1980 Act provide “a calibrated procedure” for enforcement of the duties under section 130 whereby a person who claims that a highway has been obstructed may serve notice on the highway authority requiring it to secure the removal of the obstruction and if the highway authority fails to do so the complainant may take the matters to a magistrates’ court who may make an order requiring the highway authority to take such steps as may be specified for the removal of the obstruction.

The case of Herrick v Kidner [2010] EWHC 269 (Admin) concerned a notice served on Somerset County Council for the removal of large gates across a footpath. The Crown Court had made an order supporting the removal of the gates and middle gate pillar but not the entire structure but it was considered that in allowing the retention of the outermost pillars and part of a fly wall an irrelevant consideration had been taken into account.

On appeal, the Administrative Court decided: “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. The Crown Court should have made that order in relation to the totality of the structure obstructing the full extent of the footpath”.

The case of Ernstbrunner v Manchester City Council [2009] EWHC 3293 (Admin) also concerned the removal of a gate from a footpath. Like Herrick this case was also concerned with the Council’s response to a notice served upon them requiring removal of an obstruction. In this case a notice was duly served by the Council requiring removal of the gate but it was not removed. It turned out that the gate, on the interpretation of the evidence by the Crown Court, was not on the line of the footpath as recorded on the definitive map and statement. No order was made about against the highway authority on that basis.

Legislation gives the highway authority involvement in and generally control over all structures introduced into or activities undertaken within the highway. Discharge of the statutory duty which arises in asserting public rights does therefore presuppose that the appropriate controls are exercised and information about the extent of any highway in respect of which the duty falls to be discharged is on a record properly maintained and accurate.

Alan Timms is a Paralegal at Essex Legal Services. He can be contacted on 01245 506722 or by This email address is being protected from spambots. You need JavaScript enabled to view it..