Herrick & Anor v Kidner & Anor

Under sections 130A–130D of the Highways Act 1980, an obstruction within the legal extent of a highway falls within the court’s jurisdiction where it significantly interferes with public rights of way over any part of that highway. Significant interference means more than de minimis interference with passage or other reasonable, usual and appropriate amenity rights. It may include psychological interference. The assessment is objective and depends on matters including the obstruction’s size, nature, location and neighbourhood. Public rights extend to the whole highway, so it is immaterial that users can pass through an unobstructed part. Once the statutory conditions are satisfied and the court decides to make an order, section 130B(2) permits steps directed to removal of the obstruction, including phased steps, but not removal of only part of it or the erection of a waymarker.

Mr and Mrs Herrick appealed by way of case stated from a Crown Court decision concerning a gateway erected across footpath Y24/10 in Somerset. The Crown Court held that the gateway was an unauthorised obstruction, that it significantly interfered with public rights of way, and that the highway authority should secure removal of specified parts of it and erect a fingerpost. The appeal raised five questions concerning lawful authority, the meaning of significant interference, the extent of the court’s power to order partial removal, and the power to require a fingerpost.

1. Significant interference. The Crown Court had not erred in holding that the gateway significantly interfered with public rights of way. Under section 130B(4)(c) of the Highways Act 1980, interference includes getting in the way of passage or prejudicing other amenity rights. It may be physical or psychological.
2. The interference must be more than de minimis. Relevant considerations include the obstruction’s size, nature, location and the character of the neighbourhood. The assessment is objective and fact-sensitive. It is unnecessary to prove the extent to which the obstructed area was actually used before the obstruction was erected. Public rights extend to the whole and every part of the footpath, subject to use that is reasonable, usual and appropriate.
3. The authorities establish that a highway authority cannot legalise an unlawful obstruction by mere consent or estoppel. The limited statutory power under section 147 did not authorise this gateway. The letter stating that the gates should remain unlocked could not confer the necessary lawful authority. In any event, the condition was not met and the purported authority was subsequently withdrawn.
4. Section 130B(2) authorises an order requiring specified steps, including phased steps, to secure removal of the obstruction. Once the statutory conditions are satisfied and the court exercises its discretion to make an order, it must require removal of the totality of the obstruction. It has no power to require removal of part only.
5. The order requiring the Council to erect a fingerpost exceeded the power conferred by section 130B(2), which is confined to steps for securing removal of the obstruction. The answers were: questions 1 and 2, no; question 3, yes; question 5, yes. Question 4 did not require an answer. The appellants’ appeal was dismissed.

The case came before the High Court by way of case stated from the Crown Court. The Crown Court had heard an appeal from the South Somerset Magistrates’ Court.