West Law Report

RAMBLERS’ ASSOCIATION v COVENTRY CC

Posted in Highways Act, Statutory interpretation, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:46PM BST 14/05/2008
Queen’s Bench Division (Admin) Michael Supperstone QC April 17, 2008
Queen’s Bench Division (Admin)

Michael Supperstone QC

April 17, 2008

Footpaths – local authorities’ powers and duties – orders – validity of gating orders – meaning of “persistent” in s. 129a(3)(b) Highways act 1980 – s. 129a(3) Highways Act 1980 – s. 129a Highways act 1980 – s. 129a(3)(b) Highways Act 1980 – s. 129a(3)(c) Highways act 1980 – s. 111 Local Government Act 1972

FACTS

The applicant association (R) applied under the Highways Act 1980 s. 129D to quash two gating orders made by the defendant local authority in respect of a public footpath and sought a declaration that the local authority had no power to install barriers across the footpath.

When making the first gating order, the local authority had relied on a report that detailed 10 crimes or incidents of anti-social behaviour that could be directly attributed to the presence of the footpath. The report also noted that the police supported the making of the gating order on the grounds that the footpath was being used for anti-social behaviour and was a crime generator.

The first gating order made by the local authority was amended by the second gating order so as to implement a blanket ban on the use of the footpath save for certain exempted users.

R contended that the local authority (1) could not have been satisfied on the evidence presented in the report that the prerequisite conditions under s. 129A(3) of the 1980 Act for the making of a gating order had been fulfilled; (2) had erred in exercising its powers to make gating orders as it ought to have imposed restrictions no greater than appeared reasonably necessary to achieve the reduction of crime and anti-social behaviour; (3) had no power to install barriers across the footpath.

ISSUES

(1) Whether the local authority could not have been satisfied on the evidence presented in the report that the prerequisite conditions under s. 129A(3) for the making of a gating order had been fulfilled.

(2) Whether the local authority had erred in exercising its powers to make gating orders.

(3) Whether the local authority had no power to install barriers across the footpath.

HELD (application refused)

(1) When considering whether the existence of a highway was facilitating the persistent commission of criminal offences or anti-social behaviour a local authority ought to consider the position as at the date of the making of the order.

The word “persistent” in s. 129A(3)(b) of the 1980 Act was an ordinary English word, commonly understood to mean “continuing or recurring; prolonged”, that did not require further definition. There was sufficient evidence of criminal offences or anti-social behaviour facilitated by the existence of the footpath to justify the making of an order.

(2) The local authority had not erred in exercising its powers to make the gating orders. Under s. 129A(3)(c) of the 1980 Act the test to be applied was whether it was “expedient to make a gating order” and it was not proper to import into that test a requirement of reasonable necessity.

What was expedient depended on all the circumstances. Relevant considerations for a local authority to have regard to when considering whether to impose a blanket restriction included available resources and the utility, cost and practicality of a lesser restriction.

(3) The first gating order was defective in not expressly stating that it authorised the installation of barriers for the purpose of enforcing the restriction provided for in the order.

However, it was clear that the first gating order intended the installation of barriers and the local authority had the power by virtue of the Local Government Act 1972 s. 111 to provide the necessary authorisation for the barriers by means of the second gating order.

Ross Crail (instructed by Zermansky & Partners, Leeds) for the claimant. Simon Bird (instructed by in-house solicitor) for the defendant.