137.Section 63inserts four new sections into the Highways Act 1980 relating to the obstruction of rights of way. New section 130A enables any person to serve notice on a local highway authority requesting it to secure the removal of certain types of obstruction from a footpath, bridleway, restricted byway, or highway recorded as a restricted byway or byway open to all traffic on a definitive map, and for which it is the highway authority. The request may lead to an order requiring the removal of the obstruction being imposed by a magistrates’ court (section 130B below).
138.Subsection (3) of 130A applies the new provisions to obstructions which are structures, things deposited on the highway which are a nuisance, and overhanging vegetation. It also gives a power to prescribe by regulation other types of obstruction to which the provisions should apply.
139.Subsection (4) of 130A excludes certain types of obstructions from the provisions. These include those types of obstructions for which an order under section 56 of the Highways Act 1980 can be obtained (in effect those obstructions that consist of disrepair) and those obstructions that are buildings.
140.Subsection (5) of 130A requires a complainant, when serving a notice of the obstruction on the highway authority, to include the name and address of the person responsible for the obstruction if they know who this is. Subsection (6) of 130A requires a highway authority on which a notice has been served to respond stating what action it intends to take over the obstruction. It also contains provisions requiring the highway authority to inform all persons who may be responsible for the obstruction that it has received a complaint and to inform the complainant of the names and addresses of such persons.
141.New section 130B allows the person who served the notice on the highway authority to seek a magistrates’ court order if they are not satisfied that the obstruction has been removed. Subsection (4) of 130B empowers a magistrates’ court to make an order requiring the highway authority to take action to secure removal of the obstruction. Subsection (5) provides a defence for the authority if the authority: (a) shows that the status of the way as a highway is seriously disputed or that it falls outside the categories listed in section 130A(2), or (b) shows that there is no duty to remove the obstruction under section 130(3) of the Highways Act 1980, or (c) shows that it has any necessary arrangements in hand to secure the removal of the obstruction within a reasonable time.
142.Section 130B(6) requires a highway authority against whom a magistrates’ order has been made to display notice of the order, and the right to appeal against it, on the highway concerned.
143.New section 130C makes provisions relating to a complainant’s right to seek an order from the magistrates’ court. These include an obligation on the complainant, when applying to the court for an order, to supply the court with the details of the persons who have been identified as possibly being responsible for the obstruction. This is so that the court may notify them of the hearing. The complainant must give the highway authority 5 days notice of their intention to apply to the court, but may not serve such notice until at least 2 months after serving the original notice under new section 130A. An application for an order must be made within six months of serving that original notice.
144.New section 130D requires a court, when determining whether to award costs against an applicant where an application is dismissed, and where the highway authority has relied upon any of the defences in subsection (5) of new section 130B, to have particular regard to whether and the extent to which the highway authority had disclosed their defence.
145.Section 63 also amends section 317 of the Highways Act 1980 to give a right of appeal to the Crown Court to any person who is responsible for the obstruction or was such a person when the application was heard by the court and was, or claimed to be, heard on the application.
146.Section 64 inserts new section 137ZA into the Highways Act 1980. The new section empowers a magistrates’ court on conviction of a person for the offence under section 137 of that Act (wilful obstruction of a highway) to order that person to remove the obstruction. This may be additional to, or instead of, a fine. Under new section 137ZA(3), failure to comply with an order (without reasonable excuse) is an offence punishable by a fine not exceeding level 5 on the standard scale (currently £5000). Further fines, not exceeding 1/20th of level 5, may be imposed for each day the offence continues after conviction.
147.Section 137ZA(4) empowers a highway authority, when a person has been convicted of failing to comply with an order under section 137ZA, to recover from that person the costs of removing the obstruction if the authority decides to use its powers to remove it.
148.A person who has been ordered to remove an obstruction may not be prosecuted again under section 137 of the Highways Act 1980 in respect of that obstruction during the period set by the court under section 137ZA for removing it or during any period set under section 311(1) of the Highways Act 1980 for complying with directions of the court.
149.Section 65 amends section 154 of the Highways Act 1980 so as to enable local authorities to require owners and occupiers of land whose trees, shrubs or hedges overhang highways to the inconvenience or danger of horse riders, to remove the offending vegetation or cut it back to a suitable height for horse riders.
Introduction Commentary on sections Sections 63 to 65: Interferences with Highways and the Provision of Stiles