Herrick & Anor v Kidner & Anor

Herrick & Anor v Kidner & Anor

Any structure erected within the legal extent of a public footpath that prevents public passage or amenity use over its footprint significantly interferes with the exercise of public rights of way under section 130B(4)(c) of the Highways Act 1980. The court has no power to order only partial removal of such an obstruction or to require ancillary works; it must order removal of the obstruction in its entirety if the statutory preconditions are met.

Parties
Claimant: Mr B Herrick; Claimant: Mrs D Herrick; First Respondent: Peter Kidner; Second Respondent: Somerset County Council
Jurisdiction
England and Wales
Judgment Date
17 February 2010
Procedural Posture
Judicial Review / Case Stated Appeal / High Court Appeal by Way of Case Stated From Crown Court
Outcome
Appeal dismissed
Legal Topics
Obstruction of Highway, Public Rights of Way, Statutory Interpretation, Local Authority Powers
Administrative Law Highway Law Obstruction of Highway Public Rights of Way Statutory Interpretation Local Authority Powers

Case Brief

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Parties

Mr B Herrick

Claimant

Mrs D Herrick

Claimant

Peter Kidner

First Respondent

Somerset County Council

Second Respondent

Procedural Posture

Judicial Review / Case Stated Appeal / High Court Appeal by Way of Case Stated From Crown Court

Legal Issues

  1. 1 Whether the gateway structure significantly interfered with the exercise of public rights of way under section 130B(4)(c) of the Highways Act 1980
  2. 2 Whether the structure was without lawful authority and the Council could exercise its powers under section 143 of the Highways Act 1980
  3. 3 Whether the court had power under section 130B(2) to order partial removal of the obstruction or to require erection of a fingerpost

Ratio Decidendi

Any structure erected within the legal extent of a public footpath that prevents public passage or amenity use over its footprint significantly interferes with the exercise of public rights of way under section 130B(4)(c) of the Highways Act 1980. The court has no power to order only partial removal of such an obstruction or to require ancillary works; it must order removal of the obstruction in its entirety if the statutory preconditions are met.

Court Disposition

Appeal dismissed

Orders

  • Crown Court order for partial removal of the gateway set aside; order substituted requiring removal of the entire obstruction from the footpath.
  • Order requiring erection of a fingerpost quashed as beyond the court's power.