Section 8.1 (Updated)

Existing Structures (Replacing, repairing or removing a structure)

This procedure can result from a regular routine inspection or where a report is received from a member of the public or where the authorisation is thought to have lapsed. The general procedure is depicted by a New Gates Flowchart. An example letter can be viewed structures letter.

For P3 groups and CMS follow the attached guidance notes.

Charges for HCC costs on authorised Structures (Policy 11 Briefing Note)

Relevant legislation

Highways Act 1980

Section 66. Footways and guard-rails etc. for publicly maintainable highways

Section 146. Duty to maintain stiles, etc. on footpaths and bridleways

Section 147. Power to authorise erection of stiles, etc. on footpath or bridleway

Section 175A. Duty to have regard to needs of disabled and blind in executing works, etc.

Section 329. Further provisions as to interpretation

Disability Discrimination Act 1995

Section 19. Discrimination in relation to goods, facilities and services

Section 20. Meaning of "Discrimination"

Section 21. Duty of providers of services to make adjustments

Is the structure lawful?

A structure will be assessed to see whether it is lawful, through one of the following:

• As a limitation set out in the Definitive Statement (Ensure the structure is recorded as a limitation and not merely as part of the description).
• Where there is evidence of a dedication subject to limitation not recorded in the Definitive Statement. Officers should check as many of the following documents as necessary:
• Ordnance Survey Maps from the earliest to the latest, and at scales from 1:2500 to 1:500 where available.
• Enclosure Maps and Awards.
• Tithe Maps.
• Parish Surveys under the National Parks and Access to the Countryside Act 1949.
• General CAO Parish Files.
• Previously authorised [HA80 s147], check RoW records. If the structure was previously authorised, check that the reasons for authorisation are still valid. An inspection should identify structures that are no longer needed (i.e. in arable fields), or could be easier to use or less restrictive, Officers should question occupiers on their intentions.
• Erected using other legal powers, for example, for the purpose of safeguarding the public [HA80 s66] (no current register) or as part of a Traffic Regulation Order [RTRA84], see RoW records.

Where a structure cannot be shown to be lawful and could be considered an obstruction, notice may be served to get it removed. The procedure for this is in Section 9.2 (Protection and Enforcement).

Where an officer is satisfied that a structure is lawful, it should then be assessed to ensure it is safe, whether it requires repair, or there is an opportunity to upgrade the structure to one that is substantially more convenient to the public.

Cattle Grids

Section 147 applies only to footpaths and bridleways and is used to sanction the erection of stiles and gates to prevent the ingress and egress of animals. Cattle grids do not secure convenient passage for path users in the same way as stiles and gates. A cattle grid by its design and definition prevents the passage of animals along the highway and is therefore a complete barrier to passage.

Furthermore Section 82 of the Highways Act covers cattle grids in detail and places a limitation on the type of highway on which a cattle grid can be permitted (comprising of a carriageway which means ways over which vehicles are permitted). Section 82 - 90 also contains other limitations relating to cattle grids.

Is the structure 'out of repair'?

Structures will be assessed on the basis of functionality and fitness for purpose. This will require a check of the structural integrity and safety, which can be carried out on-site using the checklist below.

• Is the structure free from overhanging or encroaching vegetation?
• Is the ground in and around the structure free of standing water and firm?
  (i.e. not founderous or boggy)
• Are the main posts secure?
  (i.e. no movement when pushed or pulled)
• Are any handrails or parapets secure?
• Are any steps secure and free from movement?
• Are any gates free to be opened and closed without having to be lifted or dragged?
• Bridges: Is the surface of the bridge free from defects?
• Does the structure feel safe (inspire confidence)?
• Is the structure appropriate for the type of right of way?
• Is there structure free of barbed wire and/or electric fencing?
• Is the structure part of a secure boundary (fence or other)?
  (i.e. can we justify authorisation under s147)

An answer of 'NO' to any of these questions would indicate that the structure is 'out of repair' and identify the need to take further action, which may be to remove, repair or replace the structure

Repairing and replacing structures

Structures across a Footpath or Bridleway are the responsibility of the owner of the land to maintain and the Council have enforcement powers in the event of his default. Where the owner has incurred expenditure in compliance with his obligations and applies to HCC for reimbursement, HCC is required to contribute not less than 25% of the reasonable costs of repair shown to have been incurred and has the discretion to contribute more [Highways Act 1980 s146]. However where default action is being taken this is not the case and the owner will have to bear 100% of any costs.

Where a structure is 'out of repair' a letter will be sent to the owner & occupier presenting them with three options and asking them to respond with their intentions within 7 days:

• Officers should always consider if there is an opportunity to upgrade or replace the structure to one that is substantially more convenient to the public first, then consider repairing existing structures, if this is best value.
• Officers may offset costs payable to HCC where an owner / occupier is contracted to undertake works for HCC, for example mowing or drainage. Such arrangements must be recorded in writing on the path file and finance file.
• All structures authorised under s62, s66 [HA80] or as part of a Traffic Regulation Order are the responsibility of HCC to maintain.

1. Owner / Occupier to carry out any repairs required themselves, within 14 days and at their own expense, to the HCC standards set out in the letter,

OR

2. Owner / Occupier asks HCC to carry out repairs directly and HCC will charge the occupier at the current rate, which will depend on the cost of necessary works less 25%,

OR

3. Owner / Occupier does nothing, where HCC will carry out repairs in default and charge the occupier 100% of all the costs of necessary works, staff time and admin.

Where an owner fails to reply, or fails to carry out the option they chose:

• Where an owner still fails to repair a structure within the 14 days requested or to request HCC to do so, HCC will write to the owner explaining that it is now going to undertake the works and:

• that the authorisation has lapsed and no longer exists,
• that a new authorisation is required,
• that it will be for the least restrictive option only (e.g. a gate) and
• that the occupier will have to bear 100% of any costs.
• Owners will be pursued for outstanding debts through the County Councils formal debt recovery procedure.

Upgrading structures

The County Council will consider upgrading authorised structures in satisfactory condition where there is an opportunity to or a demand to provide easier access for a wider range of users. Requests may be received through community groups or be identified by officers as potential improvements to the network (see link below).

For existing structures that were in a satisfactory condition, but which are across a route identified for improvements for easier access, officers should discuss their proposals with the owner and inform them that there would be no charge.

Owners cannot reasonably be charged for improvements over their maintenance responsibility, however authorisation may be withdrawn or revised to reflect legislation & HCC's duties and policy & guidance to improve access for all (see Policy 11). This is likely to include community (P3) activities to encourage provision of more convenient structures.

CAO / CMS / P3 Structures Costs Briefing Note

Option	Charge to owner / occupier
HCC supply kit and labour.	Charge 100% for new, or 75% for existing (unless in breach), of the actual costs incurred in each case.
HCC supply kit and owner or volunteers install.	Charge 100% for new, or 75% for existing (unless in breach), of the kit costs incurred in each case.
Owner supplies and installs structure.	HCC pay 0% for new, or 25% for existing (unless in breach) of reasonable costs, not exceeding 25% of what HCC would have paid to do the same job.
HCC supply kit and owner or volunteers install 'vs' owner contracting for other RoW work (i.e. clearance work - mowing, scrub, etc).	Charge 100% for new, or 75% for existing of the kit costs incurred in each case, but offset against owners potential invoice to HCC [e.g. if new they owe 100% if existing they only owe 75% (unless in breach) and 25% HCC contribution can be offset against their bill.]

E.G. £100 materials + £150 labour costs = £250 total for a new gate. HCC can install for £250 therefore will not pay more for an owner to supply & install than 25% of £250 = £62.50, unless exceptional circumstances can be shown.