Kind v Northumberland County Council

A highway user’s right to use and enjoy a public highway extends to its whole width at every point. An obstruction exceeding the minimal may therefore be unlawful, even where an informal bypass permits the public to continue along the route. Under section 147 of the Highways Act 1980, works may be authorised only where conditions enable the right of way to be exercised without undue inconvenience on the highway itself. A work which forces users off the highway cannot be authorised under that provision. Where an obstruction effectively stops up the whole highway, very powerful considerations are required before a court may refuse an order seeking its removal. An informal diversion over private land cannot ordinarily outweigh the public’s statutory rights or be used to circumvent the statutory procedures for diverting or stopping up a highway.

The appellant challenged a Crown Court decision concerning a cattle grid across a bridleway. The Crown Court had held that the grid was lawfully authorised by the respondent highway authority under section 147 of the Highways Act 1980. It further stated that, even if the grid were unauthorised, it would have declined to order the authority to secure its removal because members of the public could use an informal bypass over private land.

The case was stated for the opinion of the Administrative Court. The central issues were whether section 147 empowered the authority to authorise the grid and, if not, how the discretion under section 130B should be exercised.

1. The appeal was allowed. The cattle grid extended across the whole width of the bridleway and significantly interfered with public rights of way. The existence of an informal bypass did not remove that obstruction.
2. Per Moore-Bick LJ, a public highway is subject to the public’s right of use and enjoyment throughout its whole width. Anything interfering with that right to more than a minimal extent is an obstruction. The principles summarised in Herrick v Kidner [2010] EWHC 269 (Admin) were accepted.
3. Section 147(2) of the Highways Act 1980 permits the authorisation of works on a footpath or bridleway only subject to conditions enabling the right of way to be exercised without undue inconvenience. The reference to “the right of way” concerns the right to pass along the highway at the point where the works are installed. The provision did not permit the authority to authorise works forcing riders, or some walkers, off the bridleway altogether.
4. The cattle grid was therefore unauthorised for the purposes of section 130B. The Crown Court had a discretion whether to make an order requiring the authority to secure its removal, but that discretion had to be exercised by the Crown Court itself. Since the grid closed the entire width of the bridleway, it effectively stopped up the highway. Very powerful considerations were required to justify refusing an order.
5. The informal bypass could not justify refusal. It created no enforceable public rights and would effectively achieve a diversion without the statutory procedures under sections 116 and 119. The matter was remitted to the Crown Court at Newcastle-upon-Tyne for its decision under section 130B. King J agreed with those reasons and the disposition.

1. High Court (Administrative Court) — Appeal allowed and matter remitted to the Crown Court at Newcastle-upon-Tyne for a decision under section 130B of the Highways Act 1980.
2. Crown Court — On rehearing, held that the cattle grid had been lawfully authorised under section 147 and stated that it would alternatively have declined to order removal.
3. Magistrates’ court — Found the bridleway obstructed but declined to order the highway authority to secure removal.