Reporting obstructions (England and Wales)
Reporting obstructions (England and Wales)
What is an obstruction?
- Not all obstructions are obstructions in law. Legally, an obstruction is anything that “prevents the convenient use of the way by passengers”, and “substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature”.
- An obstruction need not block the whole way, but just partially restrict access to it, e.g. where the height of a stile or gate has been increased, or where there are obstructions on the verge on either side.
- In deciding whether an obstruction is an obstruction in law, the court must consider “all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause actual obstruction.”
- As the exact nature of an ‘obstruction’ is not defined in law, it is difficult to predict how a court will react to any particular example. Caselaw examples have, however, included cattle grids, gates and fences.
- It is important to distinguish the presence of “obstructions” from a route being “out of repair”, which is a more complex test of whether the route is safely passable for the ordinary traffic of the area. The process for resolving each of these problems is different.
What about gates, stiles and fences?
It is possible to declare an obstruction, such as a gate, stile or fence, at the time the path is dedicated as a right of way. Obstructions present then must appear on the definitive map (a map of all recorded public rights of way in the area), and be included in the written statement that accompanies it. It is not possible to have these obstructions removed through the legal process.
The declared obstruction must remain in the state it was declared in. Raising the height of a gate or stile creates an obstruction, and the landowner would be required to return it to its condition at the time of dedication.
It is far less common for a fence to cross a path or way because they are designed to prohibit access, and it is less likely that the way would have been dedicated in the first place. However, where this has occurred, the fence must be kept in the condition it was in at the time of dedication.
Are obstructions illegal?
- Section 137 of the Highways Act 1980 (HA 1980) makes it an offence for anyone “willfully to obstruct the free passage along a highway” unless they have a lawful authority or excuse.
- A lawful authority covers ‘statutory undertakers’, such as gas or water companies, who are allowed to cause obstructions in the process of carrying out their work. There is no defence of ignorance of the existence of a right of way.
- An obstruction is an obstruction in law regardless of the type of way which it obstructs. A fallen log is equally obstructive whether it blocks a footpath, bridleway or restricted byway.
- In certain circumstances, farmers are permitted to plough over footpaths and bridleways that cross their land, but ploughing a byway or restricted byway is illegal. Cycling UK's campaigns briefing on Bridleways, Byways and Cycle Tracks goes into this in more detail.
- New gates may only be created for specific reasons, however it is not unknown for additional structures to be erected without legal permission, and scrutiny should be applied where there is no obvious agricultural reason.
- Where new gates are installed or structures replaced there it is expected that the rules in BS5709:2018 (British Standard for Gaps, Gates and Stiles) should be applied, with a presumption towards the least restrictive option. Campaigners should, wherever possible, challenge the instillation of kissing gates where there is no agricultural justification.
Penalties for obstructing the highway
The Countryside and Rights of Way Act 2000 (CRoW, sometimes referred to as CRWA) gave courts the power to order anyone convicted under Section 137 to remove the obstruction or face a second offence punishable by a fine up to certain amount, rising each day should the offender still refuse to comply. If the defendant is convicted of this second offence, the highway authority may remove the obstruction itself and recover costs from the offender.
Taking matters into your own hands
- You are entitled to take reasonable steps to remove an obstacle in your way.
- It would probably be reasonable to cut back overhanging vegetation with secateurs, or to break a lock on a locked gate, but it would not be reasonable to take away an unlocked gate, as opening it would sufficiently clear the path to allow you to pass. A highway user can only remove as much of the obstruction “as is necessary to exercise his right of passing along the highway”.
- Removing too much, for instance by cutting back too much vegetation, is a statutory offence under section 1 of the Criminal Damage Act 1970, and the owner would be permitted to sue for damages.
- Obstructions that cannot be dealt with at the time should be reported, either to the landowner or to the local highway authority.
- You may also have a right to divert around the obstruction on the nearest accessible safe route.
Reporting an obstruction
Involving the landowner
- The simplest means of clearing an obstruction is to report it to the landowner. If they appear willing to act, then there may well be no need to notify the authority and go through the legal process. In most cases, approaching the landowner directly will foster good relations between highway users and landowners.
- Local, parish and community councils have no duties in respect of rights of way, but a proactive council may use its considerable powers to assist in clearing the obstruction.
- It is always worth contacting local and national user groups, such as Cycling UK, Ramblers, or the British Horse Society for their help and advice. They may well have a local contact who can assist you, or even take on the case.
Involving the highway authority
- If all else fails, members of the public can apply to have an obstruction removed by making a formal request to the local highway authority.
- The procedure is laid out in section 63 of CRoW, and sections 130a-130d of the Highways Act 1980. You can download a form from Department for the Environment, Farming and Rural Affairs (Form 1), or can write a letter to the authority.
- When faced with an obstruction, note down:a description; its exact location, with a grid reference if possible; the time and date it was encountered; and the name and address of any witnesses. If possible, the letter or form should include the way’s details on the definitive map and the name and address of the landowner. A sketchmap can also be helpful. Send your report by recorded post to the Chief Executive of the highway authority, and keep a copy for your records.
What happens next?
The authority has one month in which to contact the landowner, requesting action to clear the obstruction. They should then write to you to let you know what they've done.
If the obstruction has not been removed two months after the authority was informed, then you may apply to the Magistrate’s Court for an Order to remove the obstruction. You must first write to the local authority and five days later may apply to the court. There is a six-month period from first notification in which to do this.
It is highly advisable to speak to a lawyer if you are considering getting a Magistrate’s Order, as the procedure can be complicated and time-consuming. Alternatively, it is possible to coax authorities into action without resorting to the courts, by writing to councillors, committee chairmen or cabinet members. It is also possible to ask the local council to pressurise the authority to act. If a local council asks the highway authority to remove an obstruction, and it is not removed, then the council can apply to the Magistrate’s Court for an Order.
Cycling UK's views on obstructions on rights of way in England and Wales, are explained in our campaigns briefing on Obstructions and 'out of repair' rights of way.