Section 137 Highways Act 1980 provides that:
If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.
and can be used in a variety of ways, often in respect of demonstrations and other temporary interferences with the free use of a highway, but I dealt recently with a matter where my client was being prosecuted under section 137 by a local authority in respect of the closure of an alleyway for seven years.
The alleyway in question ran alongside my client’s property and was not shown on the highway authority’s “Definitive Map” as a highway of any sort (e.g. footpath, bridleway, byway, etc.) nor was it an adopted highway (i.e. one maintained by the local highways authority or at public expense) but it had been used for a considerable time by members of the public and provided a “cut through” from the High Street to a Council-owned car park.
When my client acquired the property it was in a semi-derelict state and needed considerable repair and renovation works; the matter was complicated because the property was a listed building and any works required planning permission, listed building consent and had to satisfy Building Control requirements and, inevitably, this delayed matters. In addition as the property was cleared, it became evident that its cellar extended under the alleyway although this was not shown as part of the property on my client’s title deeds.
When substantive works were commenced in 2014 the alleyway was closed in order to provide a safe and secure building site, but there were a number of instances of vandalism and of people removing the barriers, and works were delayed and came to a halt when further issues arose between the Council and my client.
In 2017 it was discovered following a survey that a tarmac surface applied by the Council many years before had caused water ingress at the flank wall of the property which in turn had eroded the structure so that the roof of the cellar supporting the alleyway needed to be rebuilt. Again, my client sought to engage with the planners to obtain the necessary permissions and consents for a suitable design and construction scheme for the replacement roof/alleyway surface but discussions became problematic and works again stalled.
In 2020 local residents made an application to the County Council for the alleyway to be added to the Definitive Map and registered as a public highway by virtue of over twenty years’ continuous use (i.e. as a “deemed highway” under section 31 Highways Act 1980); such applications take many years to be processed and decided and the formal “Definitive Map Modification Order” (“DMMO”) process has still (August 2022) not been started!
In early 2021 the local council issued a summons and information in respect of the offence under section 137 Highways Act 1980 relying on the closure of the alleyway since October 2020 (given that the offence is “summary only” and section 127 Magistrates Courts Act 1980 requires proceedings for a summary only matter to be brought within six months of the offence). The Council then issued a “Stop Notice” under section 215 Town and Country Planning Act 1990 requiring all works on site to cease.
The prosecution gave rise to various submissions on the status of the alleyway and the relevance of a Definitive Map (i.e. while it is determinative of the status of any route shown to be a public highway, it does not show what is or may be a deemed highway), and examination of the evidence for and motivations behind the DMMO application and of the reasons for the various delays to the works but the key issue was whether my client had a “lawful authority or excuse” for the (admitted) obstruction.
The Magistrates considered the full history of the matter and the circumstances of the closure of the alleyway, it being agreed that while the focus and any decision must be on the period from October 2020 (as the period of the charge), the background of the case provided essential context for the matter. They found that the alleyway was a deemed highway having been used by the public for well over 20 years by the time of the original closure in 2014. They further found that there was no “lawful authority” for the obstruction, e.g. a stopping up order or other formal determination suspending the public use of the alleyway.
However, in respect of the period from October 2020, they found that it was not safe to have the alleyway open pending completion of the necessary works (as indicated by the surveyor’s report which had been provided to the Council in 2017) and they accepted the defendant’s explanation for the delays, i.e. the continuing issues with the Council, financial constraints, vandalism and various periods of covid restrictions, and found that there was a “lawful excuse” for the closure of the alleyway. The defendant was found not guilty and the Magistrates went on to make a Defendant’s Costs Order in his favour.
Significantly, as soon as the Council agreed (as part of a deal negotiated when the original listing of the trial was adjourned prior) to allow the works to commence, they were completed and the alleyway was re-opened within a couple of months (and before the final hearing of the matter).
As with all cases, this matter was decided on the particular facts and evidence before the court but, I hope, it provides an interesting illustration of what may amount to a “lawful excuse” for an obstruction of the highway.
Members of Becket Chambers are able to advise and assist parties in respect of a range of civil and criminal matters involving highways, boundary disputes and rights of way; please contact the clerks via email@example.com on 01227 786331 for further information.