Herrick & Anor v Kidner & Anor

This case concerns public access to a footpath in Somerset. The essential issue is the extent to which a member of the public can have removed a gateway the landowners have built across it. The proceedings are in the form of a case stated from the Crown Court. There is no further appeal from this court. Because of that, as Mr Laurence QC for the first respondent put it, this judgment will effectively lay down the law until such time as it is reversed by legislation or another High Court Judge decides that the judgment is plainly wrong. Moreover the judgment, as Mr Laurence QC also put it, will state the law authoritatively not only in relation to this footpath but in all manner of circumstances up and down the country, in both rural and urban areas. The issue clearly deserves the most careful consideration.

Footpath Y24/10 near South Petherton in Somerset passes across land owned by Mr and Mrs Herrick, the appellants. It begins at a point immediately to the east of North Mill Brook, where Barcroft Lane as a public vehicular highway ends, is almost immediately joined by footpath Y24/12, is later joined by footpath Y24/9 and eventually ends at a junction with footpaths Y24/3, Y24/4 and Y24/8. Before the Crown Court the experts agreed that while the historic width of footpath Y24/10 just beyond North Brook Mill was between 8 and 9.25 metres, the useable width is now 3 to 5 metres (Mr Kidner’s experts) or 2.8 to 3.7 metres (Mr and Mrs Herrick’s experts). In the approach to North Brook Mill the public highway, Barcroft Lane, was variously estimated at between 2.5-2.8 metres.

Mr and Mrs Herrick live in Barcroft Hall, built by the previous owner in the late 1980’s. In 2004 they constructed an impressive gateway across footpath Y24/10, consisting of 3 substantial pillars constructed of brick and stone, and flanked by brick fly walls. There was further landscaping of the area around the gates. The pillars of the gateway support iron gates. Between the first and second pillars there is a pedestrian gate, and between the second and third pillars there are double gates. The width of the double gateway into Barcroft Hall is between 4.08 and 4.17 metres (depending on how the measurements are taken). When first installed the double gates between pillars 2 and 3 were electronically controlled by remote control or by intercom to the house. Anyone wishing to pass had to go through the pedestrian gate to the side, or communicate with the house to pass through the double gates. The effect was certainly to obstruct those wishing to walk along footpath Y24/10, and it is conceded by Mr and Mrs Herrick that the structure with the gates operated electronically did amount to an obstruction which significantly interfered with the exercise of public rights of way.

By May 2005, Somerset County Council (“the Council”), the second respondent, and the responsible highway authority in this case, had given notice under section 143 of the Highways Act 1980 (“the 1980 Act”) requiring the removal of the structure “including side gate and stone pillars” within a month. This was not complied with. A further section 143 notice followed in September 2005, with the same lack of result. That notice referred to “unauthorised gates”. In December 2005, the Council issued a summons against Mr Herrick in the Yeovil Magistrates’ Court alleging an offence contrary to section 137 of the 1980 Act. On 23 June 2006 the court convicted Mr Herrick, gave him an absolute discharge and ordered that the electronic mechanism to the gates be disabled in 56 days. The court declined to order the removal of the gates themselves. It does not appear that they were invited to order the removal of any pillars. However, the gates were not kept unlocked owing, it appears, to continuing difficulties with the mechanism.

Following the prosecution, on 11 September 2006, Mr Kidner, a member of the public and the first respondent, issued a notice under section 130A(1) of the 1980 Act to secure the removal of an obstruction of footpath Y24/10, at the junction with Barcroft Lane. On 10 January 2007 he gave notice to the Council stating that he was not satisfied that the obstruction had been removed and informing the Council that he intended to apply to the Magistrates’ Court for an order requiring it to take steps for securing the removal of the obstruction. Five days later the Council served a section 143 notice on Mr and Mrs Herrick, requiring the removal of the structure within one month.

On 21 February 2007 the Council wrote to Mr and Mrs Herrick that the “gating obstruction” on the footpath would involve removing the double gates, but that it would suspend its enforcement action for two weeks. On 1 March, the Council wrote again to Mr and Mrs Herrick, informing them that the Council would “not be removing the gates on [footpath] Y24/10. The gates must remain unlocked (preferably open) …” The minutes of the South Petherton Parish Council dated 13 March 2007 record, under the heading “District Councillor’s Report”, that the Council (i.e. Somerset County Council) “say they have discharged their duty relating to the gates of Barcroft Hall and the gates should be kept locked open at all times.”

On 12 April 2007 the chief executive of the Council, Alan Jones, wrote to Mr and Mrs Herrick’s solicitors pointing out that the Council decided not to pursue the removal of the large gates across footpath Y24/10, but that the right of way appeared to members of the public to continue to be obstructed “and proceedings have now been taken against the Council by a member of the public in respect of what is perceived to be an obstruction. I do not understand your clients’ objection to the suggestion that the gates should remain open”. The letter continued that it was not agreed that an unlocked gate did not constitute an obstruction. In a further letter dated 10 May, Mr Jones wrote that the Council still regarded the gates and pillars as an obstruction to the public right of way. “[T]he County Council does not oppose the action taken by Mr Kidner, nor could it when the claim is brought on the basis that the gates and pillars amount to an obstruction. This is the view consistently held by the County Council …”

Mr Kidner had, in fact, commenced proceedings in the South Somerset Magistrates’ Court on 8 March 2007, complaining of the failure of the Council to secure the removal of the offending structure. The case was heard in South Somerset Magistrates’ Court by District Judge Parsons, who gave his ruling on 15 October 2007. It was to the effect that those parts of the structure had to be removed which lay within a distance of 6 metres centred on the point where the double gates meet. Mr and Mrs Herrick then appealed to the Crown Court under section 317 of the 1980 Act. Before the Crown Court none of the parties sought to uphold the order made in the Magistrates’ Court.

The Crown Court appeal was by way of rehearing. HH Judge Longman sat with two lay justices for a five day hearing beginning on 8 December 2008. The judgment is dated 9 February 2009. The court found that the Council’s letter of 1 March 2007 was written in terms which could only be construed as giving authority for the time being to retain the gates, and that Mr and Mrs Herrick were entitled to and did believe that they had been given authority for the gates to remain if they were kept unlocked: para 33. However, the court found that such authority as was given was subsequently taken away by a decision of the Council following Mr Kidner’s notice:

“We further find that, by the time that authority was taken away, the gates had not been “kept unlocked” because of continuing problems with the release mechanism which resulted in difficulties opening the gates, so that the terms on which the authority had been given had not, in fact, been met”: para 33.

The court went on to find that there was no lawful authority for the gates and nor had the Council disempowered themselves from taking further action under section 143. It followed that the structure was an alleged obstruction to which section 130A applied: para 34.

The court then turned to section 130B(4) of the 1980 Act, whether the structure was an obstruction, and if so, whether it significantly interfered with the exercise of public rights of way over footpath Y24/10. First the court considered the evidence. There was the lay evidence.

“[35] We heard evidence from many witnesses who have walked in the area for many years, and are familiar with the location both before and after the structure was built. We found there to be a general consensus that the actual usable width of the footpath was not reduced by the erection of the pillars, which were sufficiently wide apart to accommodate the previous usable width of the footpath at that point.”

On the expert evidence it had heard, the court found that the width of the footpath at the point where it is crossed by the gates was at least 8 metres wide. It followed that the footpath was wider than the double gates, and that two of the pillars at least, and part of the fly wall, were situated on the footpath itself and caused an obstruction.

The court then turned to the legal question, whether the structure “significantly interfere[d] with the exercise of public rights of way over that way” under section 130 B(4)(c). It said this:

“[47] … 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, as contended by Mr Mould QC on behalf of the appellants?

…

[51] An obstruction which significantly interferes with the exercise of public rights of way over any part of the way falls within section 130B(4)(c). That will certainly be the case where it prevents passage over part of the way.”

Thus the court found that parts of the structure were on the footpath and did significantly interfere with the exercise of public rights of way over it. Those parts of the structure on the footpath included at least the first two pillars and the gates mounted on them.

Finally, the court considered what order to make under section 130B(2) to secure the removal of the obstruction. The court noted that under section 130 B(4) it had a discretion whether to make an order and what order to make. In exercising that discretion it said that it bore in mind that the Council still had the power under section 143 to remove any remaining obstruction. Mr and Mrs Herrick’s case was that the court should make an order requiring steps to be taken to secure the two main gates so that they remained locked permanently in the open position. The court decided that the Council should go further and remove certain parts of the gateway, including the gates themselves and the middle gate pillar. That was the order which Mr Kidner supported. In making that order the court emphasised the particular facts and history of the case and acknowledged that leaving the outermost pillars would still give walkers a strong indication that they were entering private property and discourage some from entering between the pillars. However, it thought that, to a great extent, such walkers would be emboldened by waymarks clearly indicating the existence and direction of a right of way. It therefore ordered the Council to erect a fingerpost outside the gateway.

Mr and Mrs Herrick now appeal to the High Court by way of case stated from the decision and order of the Crown Court. The Crown Court poses two questions for the opinion of the High Court, on the application of Mr and Mrs Herrick. I shall call these questions 1 and 2.

“Did we err in law in concluding in paragraph 34 of our Judgment and for the reasons given in paragraphs 30 to 34 thereof that, for the purposes of section 130B(4)(a) of the 1980 Act, the obstruction was without lawful authority and/or that the Second Respondent as highway authority was able to exercise its powers under section 143 of the 1980 Act to secure its removal?

Did we err in law in determining in paragraph 51 of our Judgment that, for the purposes of section 130B(4)(c) of the 1980 Act, an obstruction which actually prevents passage on foot over any part of the highway significantly interferes with the exercise of public rights of way over that way?”

On behalf of the Council the Crown Court has posed three additional questions: (questions 3-5):

“Did we err in law in finding in paragraph 53 of our Judgment that, having found that the criteria of section 130B(4) were satisfied and having decided to exercise our discretion to make an order, we had the power under section 130B(2) of the 1980 Act to specify lesser steps than the removal of all parts of the Structure?

In the event that the High Court answers the previous question in the negative, did we nevertheless err in law, in all the circumstances of the present case, in exercising our powers under section 130B(2) so as not to require the Second Respondent to take steps to secure the removal of the totality of the Structure?

Did we exceed our powers under section 130B(2) of the 1980 Act in ordering the Second Respondent to install a fingerpost as stated in paragraph 57(2) of our Judgment?”

The relevant legislation is the Highways Act 1980 (“the 1980 Act”), as amended by the Countryside and Rights of Way Act 2000 (‘the 2000 Act’). Under section 56 of the 1980 Act a person who alleges that a highway is out of repair may take legal proceedings to have it repaired. Section 116 confers powers on a magistrates’ court to stop up or divert a highway, and sections 118-119 confer a comparable power on councils in respect of footpaths and other lesser highways. Section 130 of the 1980 Act contains a duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which it is responsible. That includes a duty to prevent the obstruction of highways.

Part IX of the 1980 Act confers specific enforcement powers on a highway authority to aid the discharge of its general duty under section 130 in respect of the obstruction of a highway. Section 137 creates the offence of wilful obstruction of the highway. Breach is punishable by fine. Section 143 confers power upon a highway authority to secure the removal of an unauthorised structure – a structure “otherwise than under a provision of this Act or some other enactment” – which has been erected or set up on a highway. “Structure” is defined widely to include “any machine pump, post or other object of such a nature as to be capable of causing obstruction”, even if it is on wheels. Section 149 allows the removal of things deposited on a highway which are a nuisance and section 154, the cutting and felling of hedges, trees or shrubs which overhang it. There is a specific power to authorise gates on agricultural land: s. 147. Highway is defined in the Act to include the whole or any part of the highway, except where the context otherwise requires: s. 328(1).

The 2000 Act introduced further powers into the 1980 Act to enable the removal of unauthorised obstructions from the highway. Section 63 of the 2000 Act introduced sections 130A to 130D. Section 64 of the 2000 Act introduced section 137ZA. Overall these provisions empower a person to serve a notice on a highway authority requiring it to secure the removal of certain kinds of obstruction from minor highways. Thus the notice specifies the obstruction against which, in the opinion of the applicant, the highway authority is under a duty to take action under section 130. The provisions also provide a procedure for a person who has served such a notice, and is not satisfied with the highway authority’s actions, to apply to the courts for an order requiring it to comply with the notice.

Section 130A of the 1980 Act provides (in part) –

“(1)

Any person who alleges, as respects any highway……

(a)

that the highway falls within subsection (2) below, and

(b)

that it is obstructed by an obstruction to which this section applies,

may serve on the highway authority notice requesting them to secure the removal of the obstruction from the highway……

(2)

A highway is within this subsection if it is –

(a)

a footpath…

(3)

[T]his section applies to an obstruction of the highway if the obstruction is without lawful authority and either -

(a)

the powers conferred by section 143…below are exercisable in respect of it…”

Section 130B(1) of the 1980 Act enables the person who has served a notice under section 130A(1), if not satisfied that the obstruction has been removed, to apply to a magistrates’ court for an order. That order will require the highway authority to take steps for securing the removal of the obstruction.

“(2)

An order under this section is an order requiring the highway authority to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for securing the removal of the obstruction.”

There is a right of appeal to the Crown Court: s.317(3).

To make an order under section 130B the court must first be satisfied as to the fulfilment of the three conditions stated in section 130B(4). Section 130B(4) is in the following terms (insofar as relevant to the present appeal)–

“(4)

[T]he court may make an order under this section if it is satisfied-

(a)

that the obstruction is one to which section 130A above applies…,

(b)

that the way obstructed is a highway within subsection (2) of that section, and

(c)

that the obstruction significantly interferes with the exercise of public rights of way over that way.”

If the court is satisfied about the fulfilment of the three conditions, it is a matter of discretion whether it should proceed to make an order – “the court may make an order” – requiring the highway authority to secure the removal of the alleged obstruction: s. 130B(2). Upon the hearing of a section 130B application, the person who is responsible for the obstruction to which the application relates has a right to be heard by the court in respect of the matters mentioned in section 130B(4): s 130C(6).

Section 137ZA of the 1980 Act empowers the court to order persons convicted of an offence under section 137(1) of the 1980 Act to take steps for removing the cause of the obstruction which it is within their power to remove. It also empowers the local highway authority to recover from those persons its reasonable costs of taking steps to secure the removal of the obstruction. Section 137ZA(1) states:

“(1)Where a person is convicted of an offence under section 137 above in respect of the obstruction of a highway and it appears to the court that -

(a)

the obstruction is continuing, and

(b)

it is in that person’s power to remove the cause of the obstruction,

the court may, in addition to or instead of imposing any punishment, order him to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for removing the cause of the obstruction.”

There are no authorities directly on the point before me. The only authority to have considered the matter is Ernstbrunner v Manchester CC [2009] EWHC 3293 (Admin). Ultimately that turned on the location of a public footpath when there was a conflict between the definitive map and accompanying statement. However, in the course of his judgment Lloyd Jones J considered the finding of the Crown Court, that while a locked gate is an obstacle which significantly interferes with the exercise of a public right of way, it was not persuaded that the same could be said in respect of an unlocked gate. In the view of the Crown Court, whether the requirement of significant interference could be made out might ultimately depend on the particular circumstances. It observed that an unlocked, but closed, gate straddling the pavement in Deansgate, in the centre of Manchester, would undoubtedly represent a significant interference for pedestrians, but a pedestrian walking in the vicinity of farmland and a dwelling house may well expect to encounter such an obstruction. The Crown Court considered therefore that the question turned on whether the gate was locked or unlocked. In relation to the Crown Court’s approach, Lloyd Jones J said, obiter:

“[88] I can see some force in the Crown Court's view that whether an unlocked gate constitutes a significant interference with a right of way may depend on the particular circumstances. It may be possible to envisage circumstances in which an unlocked gate may not constitute a significant interference within section 130B(4)(c). However, that clearly was not the situation in the present case ... If it were necessary for me to decide this issue I would accept the submission of Ms. Crail that once it was established that the gate across the right of way was locked for a substantial part of the time, the Crown Court would have been bound to conclude that it constituted a significant interference and that the precondition for making an order under section 130B(4)(c) was satisfied. As she put it, this is not negated by the fact that from time to time the gate might be found unlocked or even open.”

In the absence of direct authority a large number of cases on highway law were canvassed before me. The first three concern the concept of obstructing the highway. Bagshaw v Buxton Local Board of Health (1875-76) LR 1 Ch D 220 was the earliest of these. There the owners of a house sought an injunction to prevent the surveyors of highways from removing a low wall and railing enclosing a piece of ground in front of it. The surveyors of highways alleged that the ground was part of a highway and that the wall and railing were an obstruction to the safe and convenient passage along it. The road opposite the house, exclusive of the piece of ground, was about 36 feet wide. The owners said that given that, the wall did not obstruct “the safe and convenient passage along [the] street”. That was the statutory phrase characterising one dimension of the type of obstruction against which the surveyors of highways could act under the Towns Improvement Clauses Act 1847. Jessel MR held that “along [the] street” meant along the whole of the street:

“[I]f you take and enclose a portion of the street itself, how can it be said that that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held …”: at 224.

In Homer v Cadman (1886) 50 JP 455 a stipendiary magistrate at Sedgley Petty Sessions convicted the appellant under section 72 of the Highway Act 1835 with unlawfully and wilfully obstructing the free passage of a public highway. The appellant had come with a band to the bull ring in Sedgley, a cross-road, now part of the Metropolitan Borough of Dudley. A crowd of 150-200 people had 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 between it and the footpaths for vehicles and passengers to pass. On a case stated Mathew and Smith JJ had no difficulty in affirming the conviction: there was evidence on which the magistrate could convict the appellant of obstructing the highway.

Wilful obstruction of the highway under section 137 of the 1980 Act was the charge in Torbay Borough Council v Cross (1995) 159 JP 682. The highway there 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, but on appeal by the council to the Divisional Court the appeal was allowed and the case remitted to them with a direction to convict. Dyson J (with whom McCowan LJ agreed) applied a passage in Lord Parker CJ’s judgment in Seekings v Clarke (1961) 59 LGR 268, that anything which substantially prevented the public from having free access over the whole of the highway, which was not purely temporary in nature, was an unlawful obstruction. One possible exception was on the principle of de minimis, where there was a fractional projection. Dyson J held that the de minimis principle could not be applied. That principle was reserved for cases of fractional obstructions, which this case was clearly not.

A second category of authorities canvassed were those relevant to the rights entailed in the public’s access to the highway. The issue in Director of Public Prosecutions v Jones [1999] 2 AC 240 was the offence of taking part in a trespassory assembly, knowing it to be prohibited by order. The justices had convicted, but the Crown Court held that holding a peaceful, non-obstructive assembly was part of the public’s limited right of access to the highway and so was not prohibited by the order. The House of Lords held that the Crown Court had been correct in result, although the reasoning differs somewhat between the three law lords in the majority. Drawing on Lord Esher’s judgment in Harrison v Duke of Rutland [1893] 1 QB 142, Lord Irvine of Lairg LC held that lawful activities on the highway were not only those incidental or ancillary to the exercise of the right of passage but any which constituted a reasonable and usual mode of using the highway, provided they were not inconsistent with the general public’s right of passage (at 255 E). That approach did not include unreasonable or obstructive use:

“That user may in fact extend, to a limited extent, to roaming about on the highway, or remaining on the highway. But that is not of the essence of the right. That is no more than the scope which the right might in certain circumstances have, but always depending on the facts of the particular case. On a narrow footpath, for example, the right to use the highway would be highly unlikely to extend to a right to remain since that would almost inevitably be inconsistent with the public’s primary right to pass and repass” (at 256 E).

Lord Slynn dissented. Although also in the minority Lord Hope said the test was what was ordinary and reasonable use, but in the context of using the highway, as a highway, in the exercise of that right (at 272 G-H).

For Lord Clyde use of the highway comprised more than the mere movement along it and included a variety of activities, subsidiary to the user for passage, which were consistent with what people reasonably and customarily did on a highway (at 279 D-F). Use must not be for some ulterior purpose for which the highway was not intended to be used and must not be so conducted as to interfere unreasonably with the lawful use by other members of the public for passage along it (at 280 A-B, D). If the purpose of the activity became the predominant purpose of the occupation of the highway, or if the occupation became more than reasonably transitional in terms of either time or space, it may come to exceed the right to use the highway (at 281 F). Referring to earlier authorities Lord Hutton said that they did not exclude a reasonable use of the highway beyond passing and repassing, provided always that the use was not inconsistent with the paramount purpose of a highway, i.e., for use of the public to pass and repass (at 292 F-G).

Then there is Spice v Leeds City Council [2006] EWHC 661 (Admin). There the claimant landowners applied for 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. It was said that the highway was unnecessary as a highway because it was covered with shrubbery and had never been maintained by the authority. Ouseley J said that in reaching a decision as to whether a strip of land was unnecessary for the performance of highway functions the starting point was whether or not it was used for passing or re-passing, but in considering the matter it would be necessary to consider whether the land was performing an amenity or other function which required the trees or fences to be there, whether for amenity, verge protection or some other purpose. It could be necessary for the highway to perform a function in relation to safety or access for third parties: para [40].

The third category of authorities before me address the issue of a highway authority purporting to authorise an unlawful obstruction, or failing to act against one, and whether that prevents their later taking action against it. In Hampshire County Council v Gillingham [2000] EWCA Civ 105 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. At one point, in an attempt to take the heat out of the dispute, the council had written to the defendants appearing to be willing to be satisfied if an 8 foot gap was provided for public use. The county court judge held that the public were entitled to the full width of the footpath, a width between 9 and 12 feet in this area. The council were not estopped from asserting the rights of the public; any acquiescence by them in unlawful obstruction of footpaths and rights of way could not affect the position. At a point where the track was 16 feet 6 inches wide, the defendants maintained that there was an 8 feet wide gap between the gate and the opposite hedge. The judge rejected that, since the gate and concrete post there obstructed the public from enjoying the full width of the footpath.

In the Court of Appeal Brooke LJ said that once the judge was satisfied that the defendants had obstructed a public footpath, he was entitled to order them to take the gate and concrete post down “so that the public could enjoy their rights without obstruction”: para [48]. As to estoppel, based primarily on the council’s letter, Brooke LJ agreed with the judge: mere consent of a highway authority to an obstruction on the highway was ineffectual for the purposes of legalising it, and where a statute, like section 130 of the 1980 Act, enacted for the benefit of a section of the public, imposed a duty of a positive kind, the person charged with the performance of the duty could not by estoppel be prevented from exercising statutory powers. As to the argument that the judge ought to have disregarded the encroachment of the gate as de minimis, Brooke LJ said this:

“[50] … The flaw in this argument is that as a matter of law members of the public are entitled to utilise the full width of any footpath over which they have rights of way, subject to a very narrow de minimis exception: see Hertfordshire CC v Bolden (The Times, 9^th December 1986) and Wolverton UDC v Willis [1962] 1 All ER 243. The Gillinghams’ argument takes no account of the width of the enclosures mentioned in the Definitive Map. They do not appear to understand that the public is entitled to enjoy the full width of the land between the enclosures (as the judge correctly held) … ”

On the estoppel issue Brooke LJ cited Harvey v Truro Rural District Council [1903] 2 Ch 638. There Joyce J had held that in the case of an ordinary highway running between fences, the right of passage prima facie extended to the whole of the ground between the fences, and the public were not confined to the metalled portion. Joyce J added that 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 years previously a somewhat larger space was required and the surveyor for the highway authority had, without any authority from his employers, arranged to pay the owner of the adjoining land in respect of this. Later the surveyor’s action was practically repudiated by the authority. Joyce J said that even if the highway authority had actually consented to any obstruction or encroachment upon the strip being part of the highway, such consent could not legalise that which was otherwise illegal (at 645).

Similarly, in Redbridge London Borough Council v Jaques [1970] 1 WLR 1604 a trader had for several years been accustomed to park his motor vehicle and set up a stall from its rear in a service road. He caused an obstruction but was not prosecuted. Eventually, the council charged him with wilful obstruction, contrary to what is now section 137 of the 1980 Act. Lord Parker CJ said:

“It is enough to say that it is quite clear that a valid licence cannot be given to perform an unlawful act. The council cannot change the nature of a highway. Once a highway, it is always a highway, and in any event if they did give any permit or licence they can withdraw it at will, and the institution of the proceedings would be a withdrawal” (at 1606F).

Finally, Kind v Newcastle-upon-Tyne Council [2001] EWHC 616 Admin was cited to me. It is a quite different category of case. There the claimant had obtained an order from the magistrates for the council to repair an unmade road, Prestwick Carr. The Crown Court had allowed the council’s appeal finding, inter alia, that the road was in a reasonable state of repair to serve the ordinary traffic making use of it. On a case stated Scott Baker J referred to Diplock LJ’s statement of the law in Burnside v Emerson [1968] 1 WLR 1490, 1496H, that the duty of maintenance of a highway is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood. Scott Baker J said:

“[18]. The Crown Court had to look at the whole highway. This it did. It correctly found that the highway included the whole of the width between the enclosures, but that does not mean that the council had an obligation to level everything and make all parts of it like a motorway, flattening banks so that vehicles could pass over them. The question was whether the highway as a whole was reasonably passable for ordinary traffic. In truth, what Mr Kind is interested in is only the verges. I cannot accept his submission that the facts of Burnside are so different from the present case that it is dangerous and erroneous to take the “simple principle” of Burnside and apply it to this case …

[19]. There is in my judgment no inconsistency between the finding that Prestwick Carr is in a reasonable state of repair to serve the ordinary traffic using it and the finding that the verges are not suitable for all traffic to pass along. The mere presence of verges, because they form the part of the highway, does not require the highway authority as part of its maintenance obligation to extend the metalled carriageway over them. Whilst it may be desirable for the metalled part of the road to be wider, that is irrelevant in assessing the road's state of repair.”

In my view these authorities 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. But none of these principles addresses directly the critical issue in this case, to which I now turn.

Logically the first, and in this appeal the critical, issue is whether the gateway to Barcroft Hall constitutes a significant interference with the exercise of the public rights of way over footpath Y24/10. In a cogent and powerful submission Mr Mould QC contended that the Crown Court erred in law in deciding that an obstruction which significantly interferes with the exercise of public rights of way over any part of the highway fell within section 130B(4)(c) of the 1980 Act. In his submission the true construction of section 130B(4)(c) requires a court to determine, in the light of the evidence, whether it is satisfied that the presence of the alleged obstruction interferes significantly with public passage along the highway. The test of significance is an objective one, based on an assessment of the degree to which the public’s actual use and enjoyment of the highway is in practice adversely affected by the presence of the obstruction.

Mr Mould QC submitted that this construction of the concept of significant interference is consistent with the legislative purpose of the section 130A-D procedure, which is to enable a member of the public to secure the removal of an unauthorised obstruction which, on the user evidence, causes significant interference with the actual exercise or enjoyment of the public right of passage along the highway in question, consistent with its status, in this case, a footpath. Section 130D is a default power. It is not the purpose of the procedure to enable a member of the public to secure the removal of a structure which, albeit lying within the legal boundary of a highway and so in strict law an obstruction, does not actually interfere with use of the footpath.

In Mr Mould QC’s submission the court’s power to intervene on the application of an individual to remove an actionable obstruction under section 130B(4)(c) is more limited that those conferred directly upon a local highway authority under section 143 of the 1980 Act. This result was the clear intention of Parliament: it intended to prevent the new statutory procedure burdening highway authorities, and the courts, with applications to deal with structures which, albeit within the legal limits of the highway and so technically obstructions, do not in practice affect public passage along the highway to any significant degree. No such limiting condition is necessary in relation to section 143, since a highway authority may be expected to exercise its own powers in reasonable proportion to the circumstances of the case. Section 130B was intended to be a practical remedy for a practical problem, not to have a disproportionate impact. It was intended to be evidence led in its application.

Mr Mould QC conceded that in principle the public’s right of way is over the whole of a highway. But in his submission it does not follow that the presence of a structure within the legal limits of a highway, while technically an obstruction, is one which significantly interferes with the exercise of the public’s right of way over it. Section 130B(4) was concerned with usable width. Consideration had to be given to the extent to which the public actually use the full width of a highway and the extent to which the structure interferes with that use. A de minimis obstruction did not fall within section 130B(4), since it was not an obstruction to which 130A applied, i.e., an actionable obstruction where section 143, 149 or 154 powers were exercisable against it: s. 130 A(3)(a).

As to the authorities Mr Mould QC contended that cases such as Bagshaw v Buxton Local Board of Health (1875-1876) LR 1 Ch D 220 involved different circumstances, not least that that was a road in a town, not a footpath in the countryside. The principle advanced by Lord Parker CJ in Seekings v Clarke (1961) 59 LGR 268 meant that anything which did not substantially prevent the public from having free access over the whole of the highway was not an unlawful obstruction. The section 130B procedure was focused on the primary function of a footpath or byway, the right of passage. In any event, the amenity and other aspects of highway use discussed in Director of Public Prosecutions v Jones [1999] 2 AC 240 and Spice v Leeds City Council [2006] EWHC 661 (Admin) were residual to that. There was no authority to justify taking into account a “psychological” obstruction: section 130B dealt with physical obstructions. Kind v Newcastle upon Tyne Council [2001] EWHC Admin 616 provided some support, by broad analogy, to his submission on the true construction of section 130B(4) of the 1980 Act.

Thus on a true construction of section 130B(4)(c), and on the facts found by it, Mr Mould QC submitted that the Crown Court ought to have concluded that it was the closure of the two main gates of the Barcroft Hall gateway which alone constituted an obstruction which significantly interfered with the exercise of the public’s right of way. It was the closed gates which gave rise to the 2006 prosecution. There was no evidence before the Crown Court showing that, provided the double gates are kept permanently open, the presence of the gateway interferes significantly with actual use of Barcroft Lane for public passage on foot. Indeed, there was the general consensus among walkers that the actual width of the footpath was not in any way reduced by the erection of the pillars. There was no evidence that any of the other rights associated with highways, and discussed in cases such as Director of Public Prosecutions v Jones [1999] 2 AC 240, were engaged. The only evidence of any psychological impact of the gateway was from the chair of the Ramblers’ Association, who herself was not deterred.

Properly applying section 130B(4)(c), the Crown Court’s power to make an order pursuant to subsection 130B(2) of the 1980 Act was thus limited to the order proposed by Mr and Mrs Herrick, in other words, requiring steps to be taken to secure the two main gates so that they remained locked permanently in the open position. Such a conclusion would also be consistent with the decision of the magistrates’ court in June 2006, when it ordered Mr Herrick to disable the electronic locking mechanism on the double gates and declined to order the removal of the gates themselves. Thus Mr Mould QC submitted that the Crown Court erred in its construction of section 130B(4)(c). Further, on a true construction of that subsection the conclusion reached by it was in error of law and one for which there was no proper foundation on the facts found.

The construction of sections 130A-D of the 1980 Act is not a straightforward exercise. In particular, it is necessary to give effect to the statutory language “significantly interferes with the exercise of public rights of way over that way” in section 130B(4)(c). Unless an obstruction is of that character the court cannot make an order requiring the highway authority to take steps for securing its removal. Not without some difficulty I have decided that the Crown Court was correct in its construction of the legislation in this respect and in its conclusion that those parts of the Barcroft Hall gateway on the footpath Y24/10 do significantly interfere with the exercise of public rights of way over it.

A convenient starting point for the analysis is the statutory purpose behind sections 130A-D and Mr Mould QC’s submission that the thrust of these sections is more limited than the power to remove structures which the 1980 Act confers on a highway authority under section 143. In my view the mischief at which sections 130A-D was directed was the position of members of the public prior to the enactment of the 2000 Act. Before that a member of the public, concerned about the obstruction of a footpath, could complain to the highway authority. In some circumstances that complaint could no doubt be given added force by a campaign involving councillors and others. But if the highway authority refused to budge, the legal remedies available to an aggrieved member of the public were time consuming and expensive.

First, there could be an application for judicial review to the High Court to obtain a mandatory order against the highway authority, with the procedural and legal hurdles which that entailed. A second course of action would be to ask the Attorney General to bring, or give her fiat for the bringing of, civil proceedings seeking an injunction for the removal of the obstruction. That is a rarely used procedure, fraught with difficulties. Thirdly, members of the public might bring civil proceedings for public nuisance, the obstruction of a highway, but only in their own right if they had suffered special damage, over and above that suffered by the public at large. Finally, the aggrieved member of the public could bring a private prosecution under section 137 of the 1980 Act and hope that the conviction might have a deterrent effect. (Under the 2000 Act it is now also possible for the court to order removal of the obstruction under section 137ZA in addition to, or instead of, a fine.)

Against that background the statutory purpose of sections 130A-D is evident, to ease the way for aggrieved members of the public to have a highway authority act against what was perceived as an obstruction. Except as required by the statutory language there is no reason not to give the sections, in particular the order making power in section 130B(4), a construction which is as far as possible consistent with the breadth of a highway authority’s power under section 143.

The requirements of section 130B(4) mean that the mere existence of an obstruction does not in itself confer jurisdiction upon the court to make an order. The first precondition for an order derives from the requirement that, in this context, the obstruction must be actionable under section 143 of the 1980 Act: ss. 130B(4)(a), 130A(3)(a). In other words it must be a structure – an object of such nature “capable of causing obstruction”, to use the language of section 143(4). I did not understand Mr and Mrs Herrick to contend that the Barcroft Hall gateway was not capable of causing obstruction. Moreover, the structure must have been erected or set up on the highway without lawful authority and “otherwise than under a provision of [the 1980 Act] or some other enactment”: ss. 130A(3), 143(1). This issue, lawful authority, is considered below as Issue 2 in this judgment. There I conclude that there was no lawful authority for the gateway.

Thirdly, section 130B(4)(c) demands that the structure must significantly interfere with the exercise of public rights of way over the footpath. The purpose of the significant interference precondition would seem to be to protect a highway authority which does not want to take action in relation to obstructions which are not significant from being ordered to do so, even though the powers available to them under section 143 extend to any structure on the highway. There is no need to construe section 130B(4)(c) to deter applications in borderline cases, because the courts can show disapproval of applications they consider ought not to have been brought by exercising their discretion to refuse relief and by use of adverse costs orders.

Thus the issue in the case, and the focus of Mr Mould QC’s powerful submissions, was whether albeit an obstruction, the Barcroft Hall gateway was not an obstruction which (i) significantly interfered (ii) with the exercise of public rights of way over footpath Y24/10. The first concept is significant interference. In my view interfere in this context means to get in the way of, in other words, the structure must impede the right of passage or prejudice other amenity rights, either generally or in particular. There is no reason to confine interference to physical interference. An object can get in the way of the right of passage or other amenity rights because of its psychological impact.

Next, the interference has to be significant. Significant means more than de minimis. Size is one factor, but so is the nature of the obstruction, its location and the character of the neighbourhood. All these factors in combination must be assessed to determine whether there is a significant interference. The issue needs to be considered on a case by case basis, since the same obstruction might be a significant interference in one context but not in another.

Then the significant interference must be with the exercise of “public rights of way over that way”. That concept must be read in the light of the legal principles outlined earlier. The first is that a member of the public is in general entitled to unrestricted access to the whole and any part of the highway. Authorities beginning with Bagshaw v Buxton Local Board of Health (1875) LR 1 Ch D 220 establish that principle in the context of streets, but it was applied to a footpath by Brooke LJ in Hampshire County Council v Gillingham [2000] EWCA Civ 105. It receives statutory support in the definition of highway in the 1980 Act, where a highway prima facie means the whole or any part of the highway. The second principle is that although the primary right of a member of the public over a highway is the right of passage, there are the other rights as well as explained in Director of Public Prosecutions v Jones [1999] 2 AC 240. The 2000 Act was enacted, of course, against the background of that decision. The activities contemplated by the law lords in Jones as lawful uses of the highway – making a sketch, taking photographs, children playing games, having picnics and reading books – are precisely of a type which are more likely than not to be reasonable, usual and appropriate in the circumstances of a rural footpath. Moreover, they are in their nature more likely to be exercised otherwise than on the part of the footpath used for passage.

The legal authorities on which Mr Mould QC placed particular reliance do not support a contrary conclusion. Kind v Newcastle-upon-Tyne Council [2001] EWHC (Admin) 616 is of no relevance in this context. As indicated it involved section 56(1) of the 1980 Act and a claimant who wanted the road repaired, including the verges. There was a particularly strong context, given Diplock LJ’s judgement in Burnside, the fact that the highway was in a reasonable state of repair to serve ordinary traffic and that works to the verges would involve significant improvement, to read section 56 as not necessarily entitling a person to require the whole of this highway i.e. from hedge to hedge, to be made fit for the passage of all traffic. No such principle as the Burnside principle, or the distinction between repair and improvement, demands reading the power to order a council to take steps to secure the removal of an obstruction under section 130B(2) as being limited to securing removal of an obstruction to only the part of a highway which is in fact used at a particular point in time.

Nor do I derive assistance from the cautious obiter dicta of Lloyd Jones J in Ernstbrunner v Manchester City Council [2009] EWHC 3293 (Admin), to the effect that there might possibly be circumstances in which an unlocked gate does not constitute a significant interference with the public rights of way over a footpath. Lloyd Jones J who was focused on the problem of a locked gate did not have cited to him the wealth of authority advanced before me, nor the benefit of detailed argument on the particular issue.

Determining whether there is a significant interference with the exercise of public rights of way over a footpath does not require recourse to evidence or nice judgments as to whether an obstructed part of a highway has been sufficiently used by the public prior to the obstruction to make a section 130B order available. The issue is essentially to be decided by the court as a matter of fact. It requires the type of straightforward, objective judgment which courts make on a daily basis up and down the land. User evidence would in any event be impracticable and disproportionate for every set of section 130B proceedings. For example, there would need to be an inquiry into what actual uses members of the public made of the footpath prior to the erection of the obstruction. How many members of the public would the applicant need to call? How far back in time would the evidence need to go? Such an exercise would be akin to a public local inquiry into a definitive map modification order, adding a way to the definitive map on the basis of user evidence: Wildlife and Countryside Act 1981, s. 53. That cannot have been intended in the context of what are essentially summary proceedings before magistrates.

Thus in my judgment the public is entitled to use and to enjoy everything which is in law part of a footpath. The construction to be placed on sections 130A-130D, read in the context of section 130, and section 143 to which section 130A(3)(a) refers, is that they are designed to enable members of the public to compel highway authorities to protect and assert the rights of the public to go wherever they choose on a footpath so long, of course, as it is reasonable, usual and appropriate. Any obstruction which significantly interferes with their ability to exercise their right to pass and repass and to enjoy amenity rights over each and every part of the footpath is caught by subsection 130B(4)(c). The public are not to be confined to a particular part or parts of a footpath. That the public could pass through the Barcroft Hall gateway, and that only half of the 8 metre width of the footpath at that point was obstructed by the gateway, is beside the point. The Crown Court was not in error either in its approach or its conclusion: the Barcroft Hall gateway prevented public passage and the enjoyment of amenity rights over footpath Y24/10.

The second issue concerns whether the alleged obstruction was without lawful authority so that the powers conferred on the Council by section 143 of the 1980 Act remained capable of being exercised in respect of it. Mr and Mrs Herrick’s case is that the Crown Court erred in law in concluding that the alleged obstruction was without lawful authority. On the facts found by the Crown Court, Mr Mould QC contends that at the date of Mr Kidner’s application to the magistrates’ court the Council had lawfully authorised the retention of the gateway with the two main gates kept locked permanently in the open position. Having done so, the Council was unable lawfully to exercise its powers under section 143 of the 1980 Act to secure the removal of the gateway. Thus the pre-condition in section 130B(4)(a) was not satisfied.

The evidence in support of this submission rests on the letter of 1 March 2007, where the Council wrote to Mr and Mrs Herrick’s agent informing him that it would not be removing the gates and that the gates must remain unlocked and preferably open. There is also the contemporary record in the minutes of South Petherton Parish Council. The Crown Court found that the effect of the letter was to give authority for the retention of the gates. In Mr Mould QC’s submission the approach of the Council, set out in the letter, was a reasonable decision for a highway authority to have taken in the exercise of its powers and duties under the 1980 Act. It was a proper judgment of the need for further action to remove the gateway, to protect the rights of the public using the footpath. In particular the Crown Court found there to be a general consensus among those who have walked in the area for many years that the actual usable width of the footpath was not reduced by the erection of the pillars, which with a gap of 4 metres were sufficiently wide apart to accommodate the previous usable width of the footpath at that point.

Mr Mould QC then submitted that such lawful authority, having been properly given, could not lawfully be withdrawn by the Council except upon proper grounds relating to the assertion and protection of the public’s use and enjoyment of the footpath. It was axiomatic that the Council must exercise its powers and duties as a highway authority under the 1980 Act both reasonably, and for their proper purpose. There was no evidence before the Crown Court that the Council effectively withdrew lawful authority granted on 1 March 2007 to retain the gateway with the main gates locked permanently open. Whilst hardly consistent with the Council’s grant of lawful authority to retain the gates, the chief executive’s letters in April and May 2007 were plainly not an act of withdrawal of the lawful authority previously granted to retain the gates, nor did they purport to be. There was simply a decision that the Council would not oppose Mr Kidner’s application. That could not in law amount to the effective withdrawal of lawful authority previously given to retain the gateway. Otherwise section 130B(4)(a) of the 1980 Act would be otiose: the limitation imposed upon the exercise of the Court’s powers under section 130B could be overridden in any case by the simple expedient of the highway authority declining to assert the existence of lawful authority.

Since late 2007, the gateway had been retained in the state required by the Council in granting lawful authority for its retention on 1 March 2007. In Mr Mould QC’s submission it followed that the court’s jurisdiction under section 130B(2) was limited to making an order requiring the Council to take steps to secure compliance with that lawful authority, in other words, the retention of the main gates permanently open in the future. It also followed that the power under section 143 of the 1980 Act was no longer exercisable by the Council to require any more extensive removal of the alleged obstruction. There was no evidence before the Crown Court of any change in circumstances in respect of the impact of the gateway upon public passage along the footpath, upon which the Council could properly and reasonably withdraw the lawful authority to retain the gateway which it had communicated in the letter of 1 March 2007.

To be entitled to make an order under section 130B the court must be satisfied both that the obstruction is without lawful authority and that the powers conferred by section 143, or sections 149 or 154 of the 1980 Act are exercisable in respect of it. At common law a highway authority may not by mere consent to an obstruction on the highway make it lawful, nor can it by estoppel be prevented from exercising its statutory powers to remove it: Hampshire County Council v Gillingham, [2000] EWCA Civ 105, [49]; Harvey v Truro Rural District Council [1903] 2 Ch 638; Redbridge London Borough Council v Jaques [1970] 1 WLR 1604.

Under statute there are limited circumstances in section 147 of the 1980 Act in which it is possible for a highway authority to authorise the erection of gates across a footpath or minor way. The statutory language is helpful. The section 147 power is expressly to permit the erection of a stile or gate for agricultural use to be efficiently carried on where this is judged to be “expedient … for preventing the ingress or egress of animals”. That clearly suggests permission cannot be given for another type of gate which would, to take the language of section 130B(4)(c), “significantly interfere with the exercise of the public’s rights of way over that way”. In any event, no section 147 authority was granted in the present case. Nor was any other statutory authority identified under which the gates to Barcroft Hall could be or were authorised. Section 143(1) is clear that a structure on the highway can only be authorised “under a provision of this Act or some other enactment”. In my view therefore, the Council had no power to grant authority through its letter of 1 March 2007 to maintain the gates in a closed position, as long as they were unlocked.

But assume that authority could be given. Mr and Mrs Herrick contend that it was contained in the Council’s letter of 1 March 2007, that the Council would not be removing the gates but that they must remain unlocked. The Crown Court found that the gates were not kept unlocked, albeit that this seems to have occurred because of mechanical problems. In other words any authority in the 1 March letter was conditional, and the condition was not satisfied. Moreover, in my view in May 2007 it was clear as a result of the letters written by the Council’s chief executive that the purported authority had in effect been withdrawn. The Council accepted that Mr Kidner was entitled to ask for an order under section 130B(2). Support for his proceedings was wholly inconsistent with any authority given by the 1 March letter. That remained the case when the matter was heard before District Judge Parsons later that year. Even if authority had been given it was by then clearly withdrawn. The Crown Court were correct in their conclusion.

The three questions which are posed for this court in the case stated on the application of the Council concern the extent of the court’s discretion under section 130B(2) of the 1980 Act, in particular whether the Crown Court properly exercised that discretion in making the order that, while the central pillar and gates should be removed, the rest of the structure could remain. On behalf of Mr and Mrs Herrick it is said that section 130B(2) plainly empowers the court to make an order requiring the highway authority to take lesser steps – “such steps as may be specified” – than the removal of the entirety of the obstruction. That construction derives further support from the introductory words of section 130B(4) of the 1980 Act, the court may make an order. Mr Mould QC adds that the Crown Court explained its reasons for making the order it did and that, in the light of those reasons, the court’s order was lawful.

Again in my view answering these three questions in the case stated turns on an application of the statutory language. The last of the questions concerns the order to the Council to install a finger post. In my view there is simply nothing in the wording of section 130B(2) which can enable a highway authority to be required to take any steps other than “for securing the removal of the obstruction”. The Crown Court’s order requiring the erection of the finger post therefore exceeded that power.

Nor is there anything in the language of section 130B which would empower the court to oblige the removal of part only of the obstruction. There is a discretion in the court to make no order, even if the preconditions are satisfied: the introductory words of section 130B(4). There is a power in the court to order a phasing of the steps to secure the removal of the obstruction and to specify which are the steps to be taken: “to take, within such reasonable period as may be fixed by the order, such steps …”: s. 130B(2). Having been satisfied of the matters under section 130B(4), however, and having decided to exercise its discretion to make an order, a court has no discretion as to the extent of that order in terms of requiring the removal of less than the totality of the obstruction. The language of section 130B(2) is an order for the removal of “the obstruction”. No authority was advanced before me that that language can be read as meaning part only of the obstruction. It may be that removal of part only of an obstruction would mean that it no longer significantly interferes with the exercise of the public rights of way over the footpath, but that case was not put. In summary the Crown Court did not have power under section 130B(2) to order that the Council secure the removal of part only of the obstruction.

I would add this. The Crown Court found that leaving the outermost pillars would have the psychological effect on walkers of indicating that they were entering private property and discourage some from entering between them. In my view Mr Ward’s submissions, for the Council, in this regard are correct: to permit that to occur would be contrary to a highway authority’s duty under section 130 of the 1980 Act to assert and protect the rights of the public to use and enjoy the right of way over the footpath. The Crown Court sought to overcome the psychological effect of the remaining pillars and fly wall in its order. It concluded that it would be overcome to a great extent, although not totally, by an order requiring the Council to erect a waymarker in the form of a finger post outside the gateway so the public knew that there was, in fact, a footpath. However, as I have said, the Crown Court had no power to make that order. Accordingly, in allowing the retention of the outermost pillars and part of the fly wall the Crown Court took into account an irrelevant consideration. Its order for removal of part only of the Barcroft Hall gateway is not sustainable.

In my view section 130B(4)(c) of the 1980 Act has the effect that 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. For the reasons given, insofar as questions 1 and 2 of the case stated are concerned, the Crown Court did not err in the conclusions it reached on the Barcroft Hall gateway. It was entitled to and should have made an order requiring the Council to secure its removal. As regards questions 3 and 4, in my judgment the Crown Court should have made that order in relation to the totality of the structure obstructing the full extent of the footpath. With regard to question 5, the order made requiring the erection of the finger post was beyond the court’s power under section 130B(2) of the Act. Given, however, that the Council had a power to erect the fingerpost there is no need to remit the matter to the Crown Court.

The Appellants’ appeal is dismissed. The answers to the five questions in the case stated are as follows: question (1) No; (2) No; (3) Yes; and (5) Yes. There is no need to answer question (4).