No Barrier Causes Railing

Local Government Ombudsman Decision.
Complaint reference: 15 016 097.
6 June 2016.

Available on the LGO website here.

This Local Government Ombudsman decision arose from a complaint by Mrs X against Essex County Council alleging failure by the council in four areas. Two of particular interest are that the council:

(1) failed to install signs to mark where the right of way which runs through her land changes from an adopted road to a restricted byway;

(2) required her to remove a gate and has refused her request to install a gate/barrier to prevent vehicular use of the restricted byway;

As is normal practice the Ombudsman does not identify the complainant or the location, but a quick online search suggests that the restricted byway was added to the definitive map as a result of an order determined by Inspector Alan Beckett on 3 September 2014, under PINS reference FPS/Z1585/7/74.

This decision letter (the order plan does not seem to be with it, online) describes the route, which can already be seen with RB symbols on online OS mapping. Find Mayland in Essex, and there is an ‘ORPA’ running largely northwards, which turns in to a RB at Nipsells farm, and continues to the ‘sea wall’ of the tidal Lawling Creek.
Mr Beckett finds that the ‘historical’ evidence tends to point away from there being public rights, but that clear evidence of reputation as a public road, in 45-year-old highway orders, together with witness evidence of regular public user going back more than 50 years is enough to indicate that dedication as a public vehicular highway had taken place. The Inspector finds that s.67(2) of NERCA 2006 has operated so as to extinguish the public’s right of way with MPVs, leaving a restricted byway only.

The complainant installed gates across part of the restricted byway. She said that this was to stop people driving motors along it, and parking (which, from the evidence before Mr Beckett, is just what the public had been doing for decades).

As regards signage, the Ombudsman finds: “[11] The Council has installed a sign and the sign used is in line with Natural England guidance and so I cannot criticise the sign installed by the Council.”

As regards the gates, the Ombudsman finds:

“[14] The Council took the view the gate prevented free access to the restricted byway by legal users. It therefore used its powers to require the removal of the gates. This is a decision the Council was entitled to take and I cannot criticise it.

“[15] Mrs X sought advice from the Council about using a Traffic Regulation Order (TRO) to allow the installation of gates. Such orders, made under the Road Traffic Regulation Act 1984, allow councils to place restrictions on the use of roads by vehicles or pedestrians to allow for their prompt, safe and convenient movement. The Council took the view this was not appropriate as motorised vehicles are not legally permitted to use the road and so a TRO would serve no purpose. It is the Council’s view that any structure to prevent illegal access by vehicles could restrict those with a lawful right to use the right of way.

“[16] The Council has the power under the Highways Act 1980 to grant consent to landholders to erect gates on public footpaths and bridleways but not on restricted byways. In any case, such structures are only permitted to allow for the control of livestock. The Deregulation Act 2015 proposes to amend this to allow landholders to erect gates on restricted byways. However, as Mrs X does not keep livestock on the land, gates could not be permitted under this legislation.

“[17] Under s115B of the Highways Act the Council can place objects on the highway to enhance the amenity of the highway or to provide a service for the benefit of the public or a section of the public. However the Council cannot do so where it would prevent traffic, other than vehicular, passing along the highway. The Council’s view is that a gate, even if unlocked, would prevent free passage of legal users of the highway. In any case the gate was installed by Mrs X not the Council.

“[18] There is no legal basis under which Mrs X can install gates on the restricted byway. The Council has no duty to install gates or any other structures on the restricted byway and has explained why it considers it is not appropriate to install them even if it could so. That is a decision the Council is entitled to take. Any unauthorised access by vehicles is an act of trespass and as such it is for the police to enforce. Mrs X has made complaints to the police and it is open to her to continue to do so.”

Comment. Since the commencement of NERCA, the issue of the public with motors continuing beyond the ‘end’ of public roads, on to what are now similar-looking roads but without public MPV rights, has cropped-up on a number of occasions. S.66 of the Highways Act 1980 cannot be used to instal ‘guard rails’ here because this restricted byway is prima facie not publicly repairable. But s.67 could be used if the circumstances fit?

S.67 Guard-rails etc. in private streets.

(1) Subject to the provisions of this section, in any street which is not a highway maintainable at the public expense and which consists of or comprises a carriageway a local authority may provide and maintain such pillars, rails or fences as they think necessary for the purpose of safeguarding persons using the street.

If there has been a decades-long history of the public with motors, and without motors, using the road without safety problems, then it is hard to say that safety problems arise simply because of the change of status of the route. And ‘parking’ is not of itself a safety issue. It looks like a job for Essex Police?

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