Section 9.2 - Obstructions and nuisances on the network

The most common obstructions and public nuisances are detailed below. The relevant legal references are outlined and the responsible parties are identified. The requirements of those parties are described and the powers of the Highway Authority to enforce the legislation are detailed.

Highways Act 1980 s137 is of particular importance. It is an offence if a person "without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway" [HA80 s137]. Magistrates Courts have powers to order persons convicted of wilful obstruction to remove the obstruction [HA80 s137ZA]. HCC has powers to remove obstructions and recover costs where it undertakes work to remove an obstruction where the owner has not complied with an order under s137ZA.

9.2.1 Agricultural Obstruction

Landowners have duties imposed by Highways Act 1980 s134 and 137(a) regarding the removal of crops and reinstatement after ploughing. The County Council has a duty to assert and protect the rights of the public to the use and enjoyment of the public rights of way network [Highways Act 1980 s130]. The following policy was endorsed by the County Council in order to clearly state its intention to resolve agricultural obstructions.

The County Council will normally take direct action to remove crops or to reinstate paths where landowners have failed in the duties imposed on them by the Highways Act 1980 s134 and s137A . Action will only be instigated after the County Council has served on them the necessary notices. Consideration will be given to prosecuting repeat offenders. All reasonable costs will be reclaimed. [Policy 12-Executive Committee-Agenda item 4-29January2001]

The County Council recognises that obstruction of the Public Rights of Way network as a result of agricultural practices is a significant problem despite the duties imposed on landowners by the Highways Act 1980 .

Landowners will be reminded of their obligations to re-instate within 14days as soon as a problem is identified.

If they fail in their duty to re-instate they will normally be served with a notice of the County Council's intention to take direct action.

Once contractors have been arranged the County Council will notify the landowner of the timing of remedial action.

The County Council will reclaim all reasonable costs.

The County Council may also take direct enforcement action under s143 and s149 of the Highway Act 1980 to remedy non crop obstructions. Follow the links below for more detail about:

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9.2.2 Asbestos

The following information is derived from Asbestos Fact Sheet prepared for the Rights of Way Team April 1999. If you are concerned about a particular material you find, assume until told otherwise, that it is asbestos and report it using the checklist below:

Checklist for Asbestos Discoveries on the Rights of Way Network

What is asbestos?

Asbestos is a mineral fibre that has been used for its fireproofing properties, insulation, and decorative purposes.

Do I really need to be concerned about it?

Although its mere presence does not represent a hazard, over time it can deteriorate and release fibres into the air. Breathing in these fibres is the main risk associated with asbestos. Provided the asbestos is intact it does not pose this risk.

However, it is estimated that 3,000 people a year die from asbestos related diseases in Britain. These are predominantly:

Due to the long latency period, those currently dying as a result of exposure to asbestos were probably in contact with it in the 1950s or 60s. The levels of exposure which cause disease are unclear, but we do know the greater the level of exposure the greater the risk

Will I be able to recognise asbestos when I see it?

Asbestos can appear in many forms as it has been used in many thousands of products. The amount of asbestos in these products varies significantly from 1% to 100%. These asbestos containing materials (ACM) include:

There are three main types of asbestos commonly called blue, brown and white. All are dangerous, but blue and brown are known to be more dangerous than white. However, they cannot be identified by colour alone so all discoveries of asbestos must be treated with the same care.

How can I assess the danger if I find an ACM?

Asbestos is only dangerous once it becomes airborne. Therefore, a rough assessment of the danger can be made by observing the condition of the ACM. Under no circumstances should you touch or disturb the asbestos when making this assessment. If the ACM is broken and crumbling it represents a greater hazard than one that is still intact. Some ACMs can be crumbled in the hand. This is called friable asbestos and present the greatest hazard to health as it deteriorates easily, allowing fibres to become airborne. Friable ACMs include some fireproofing materials, sprayed asbestos and trowelled on insulation.

Of less risk are hard ACMs such as floor tiles, in which the asbestos remains firmly bound. However, these can become hazardous if they have been cut, ground or sanded.

Why do we need these guidelines?

These guidelines will ensure HCC has in place a proactive management programme to guide staff should they, or others discover asbestos on the rights of way network. By preventing exposure now we will ensure that the risk to officers and the public is minimised.

It is however, important to remember that the main threat from asbestos comes from exposure in enclosed spaces. The risk to those officers who come across asbestos while on the Rights of Way network is very low.

Make sure you:

Make sure you do not:

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9.2.3 Barbed wire

The landowner is responsible for ensuring that there is no barbed wire fencing adjacent to a highway, which is likely to be a danger to the public [HA80 s164]. The law requires proof that the barbed wire is a nuisance. This interpreted to mean where a barbed wire fence is likely to injure persons or animals lawfully using the right of way.

An inspection will be used to assess the likelihood of injury to lawful users of the right of way and the following factors will be considered:

Where the officer is satisfied that injury is likely, an assessment should be made as to whether it is reasonable for the barbed wire fence to be there. Consider:

If the barbed wire is considered a nuisance and is unreasonable in all circumstances of the case, the Highway Authority will serve a notice on the landowner requiring the removal of barbed wire fencing adjacent to a path within one month. If the owner fails to comply, the Highway Authority can apply to a magistrates court for an abatement order to do the necessary work itself.

Where it is possible to remove or significantly reduce the likelihood of injury or nuisance by other measures, these should be tried first. For example, moving the barbed wire to the field side of the fence so that contact with path users is unlikely or ensuring that wire is not wrapped around posts and that barbs are removed (or hammered flat as a last resort).

NB. There should be no barbed wire on or within 1m of a structure or gap that path users are expected to use. (Section 8.4 first bullet)

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9.2.4 Bulls

It is an offence, subject to certain exceptions, for a bull to be kept in a field crossed by a public path [WCA81 s59].

The following are permitted:

The following are NOT permitted:

Farmers should be aware of the legislation that exists, however officers need to be equipped to deal with enquiries. A report relating to a bull in a field will require an inspection due to the hazard severity that it presents. The matter should be pursued where a lone bull of a recognised dairy breed is found in a field crossed by a PRoW. (An identification chart is available at County Hall.) Two options are available although the problem is normally best resolved by discussing it with the landowner or occupier.

1. Contact the Owner

If known, the landowner should be contacted for details of the breed of bull and its age. If this is not possible or further information is required the following steps can be taken. It is appropriate to remind the farmer of their liabilities under Health and Safety legislation and that persistent problems will be reported to the Health and Safety Executive.

2. Contact BCMS

All cattle are ear tagged, and Bulls have Cattle Identity Data (CID) held by the British Cattle Movement Service. The BCMS can provide the following data;

They can be contacted in writing c/o BCMS, Curwen Road, Workington, Cumbria CA14 2FF

Or; by fax to 01900 702138

When in contact with the BCMS the following Reference Number must be quoted; 1439901

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9.2.5 Crops

Requirements

Landowners are required to prevent crops, other than grass, from growing on or overhanging the minimum width of a path, where they could inconvenience the public or prevent the line of the right of way from being apparent on the ground.

This requirement was introduced by the Rights of Way Act 1990 [Highways Act s137A].

A land occupier is under a continuing obligation, after cultivation, to ensure that the public right of way remains clearly marked and free from encroaching crops to at least the minimum width stated in the legislation or the width stated in the Definitive Statement.

Any crop in excess of 6 inches (15cm), other than grass, will be classed as an obstruction to the public right of way.

Where a crop is less than 6 inches (15cm) in height, the Inspecting Officer will require the occupier of the land to ensure that the public right of way is clearly marked on the ground to at least the minimum width stated in the legislation or the width stated in the Definitive Statement.

Where a crop is in excess of 6 inches, (15cm) in height, the Inspecting Officer will require the occupier of the land to ensure that the public right of way is clearly marked and remove any encroaching crops to at least the minimum width stated in the legislation or the width stated in the Definitive Statement.

Reinstatement

Preventative action is best achieved by mechanical means; by cutting the crop, or by running a hoe or cultivator and then a roller along the line. Landowners may need to repeat this during the year, so as to maintain compliance with the duty.

If it is not possible to remove the crop by mechanical means, and spraying is the only practical solution available, then the occupier will be expected to follow the guidelines issued by MAFF/HSC (1999). Occupiers should be aware that the lawful users of the right of way may include horseriders, dog walkers, and young children. They may use the right of way within a short time of it being sprayed. If there is any doubt as to public safety implications of using a particular chemical, then the occupier should contact the Health & Safety Executive before commencing any spraying.

The Highway Authority recommends that the crops be removed from the line of the right of way at an early stage. This will reduce the necessity of further works at a later date.

Enforcement

The enforcement procedure will be the same as that followed for problems caused by the failure to reinstate after ploughing below. The same minimum widths will apply. Any reported crop obstruction and/or cultivation problems on a route that has not been cleared or restored before harvest will not be carried over for action into the next season. A history of non-compliance will be taken into account when considering taking action to prosecute. Furthermore such evidence can be used in court, where an individual has been convicted of obstruction, when magistrates are considering any penalties.

The Highway Authority can exercise its power to enter land [HA80 Sch12A], after giving notice of their intention, to deal with encroaching crops to meet the requirements of subsection 137A(2) and recover the costs incurred from the occupier. HCC has to give no more than 24 hours notice of its intention to carry out work, which can be served on the owner / occupier or posted on the land. The use of direct action will be considered when faced with non-compliance. Court Action can be taken but will not normally be considered except for persistent offenders. Follow the link for a prosecution checklist.

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9.2.6 Cultivation and ploughing

Requirements

Landowners must not plough or disturb the surface of:

The path must be reinstated within:

Landowners must ensure that:

Landowners may plough or disturb the surface of a cross-field footpath or bridleway, if it is not convenient to avoid doing so when sowing or cultivating a crop. They may also disturb a footpath or bridleway during an excavation or engineering operation, but only with prior written permission from the Highway Authority.

If the width of a path is recorded in the Definitive Statement, then that is the minimum width. Where the width is not recorded, the following dimensions are the legal minimum that must be complied with to avoid subsequent action against the owner or occupier.

The landowner / occupier has 14 days from the time the field was first disturbed to comply with their duty.

Reinstatement

Reinstatement, marking the line and keeping it clear of crops, will be judged by RoW officers in conjunction with the guidance notes provided by the Countryside Agency (CCP299/300RA/301).

A public right of way must, in the opinion of the Inspecting Officer be clearly marked and reasonably convenient for use to at least the minimum width stated in the legislation or the width stated in the Definitive Statement.

The Inspecting Officer will accept the marking of the public right of way using tractor wheels provided that the surface of the right of way between the wheel markings is reasonably convenient for use by the lawful class of user.

Enforcement

Follow this link for the Enforcement Procedure.

The Highway Authority can exercise its power to enter land [HA80 Sch12A], after giving notice of their intention, to make the line of the path apparent on the ground to meet the requirements of subsection 134(3b) and 137A (1) and recover the costs incurred from the occupier. HCC has to give no more than 24 hours notice of its intention to carry out work, which can be served on the owner / occupier or posted on the land.

The use of direct action will be considered when faced with non-compliance. Court Action (Section 9.3) can be taken but will not normally be considered except for persistent offenders. Follow the link for a prosecution checklist.

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9.2.7 Dangerous animals

Animals known to be a danger should be restricted access to a public path. Officers handling reports relating to dangerous animals should report them to the HSE local area office who have powers to enforce the provisions of the Health and Safety at Work Act 1974.

The liability for damage caused by animals usually lies with the owner or keeper of the animals concerned [Animals Act 1971], this includes the liability for:

Dangerous and ferocious dogs may also be a problem. Complaints that such a dog is dangerous, and not kept under proper control are primarily the responsibility of the police to enforce, although District/Borough Councils also have some powers to control dogs in public places [Dogs Act 1871, Dogs (Protection of Livestock) Act 1953, extended by Dangerous Dogs Act 1989, clarified by Dangerous Dogs Act 1991].

Where the issue relates to guard dogs the dog must be restrained or under the control of a capable handler at all times, and a notice, containing a warning that a guard dog is present, must be exhibited at each entrance to the premises [Guard Dogs Act 1975]. This is the responsibility of the police to enforce.

Carry out an inspection of the appropriate path to confirm the report. If confirmed, an officer should contact the appropriate authority in order to resolve the issue. The reporter should be asked to contact them directly, the inspection report can be used as evidence or the officer as a witness.

HCC will normally refer reports of dangerous animals or bulls to the local police, once an inspection has confirmed the danger, as this is a matter of public safety.

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9.2.8 Depositing on a highway

A report concerning the dumping of waste or else on a highway will be inspected in accordance with Section 5. HCC as Highway Authority has powers to remove anything deposited on a highway that constitutes a nuisance [HA80 s149(1)], and to remove immediately and without notice anything unlawfully deposited that constitutes a danger [HA80 s149(2)]. Costs are recoverable from the owner.

It is normally very difficult to establish ownership and/or responsibility for the nuisance and therefore it is often difficult to recover the costs of such action. Litter and rubbish, and dog waste are normally the responsibility of the District/Borough Councils. A report relating to any of these problems should be passed on to the relevant authority. Contacts for fly tipping.

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9.2.9 Ditches, Ponds and Channels

It is an offence for a landowner to wilfully obstruct a public right of way [Highways Act 1980 s137]. The County Council has a duty to assert and protect the rights of the public to the use and enjoyment of the public rights of way network [Highways Act 1980 s130]. The following policy was endorsed by the County Council's in order to resolve obstructions caused by landowners constructing new ditches, ponds or channels across existing public rights of way.

Where a landowner creates a new ditch, pond or channel etc that crosses an existing right of way a suitable bridge or structure must be provided which can accommodate all legitimate users safely and without restriction. Structures may be supplied and erected by the County Council or approved agents. Landowners will normally be charged up to 100% of the reasonable costs of the installation. Where a structure is built to a higher specification, the County Council will bear the additional cost. Absence of any structure can be construed as 'wilful obstruction' on behalf of the landowner. Exceptions may include instances where a path is recorded in the Definitive Map and Statement subsequent to the new feature being created. [Policy 9-Executive Committee-Agenda item 4-29January2001]

This policy will ensure that landowners who intentionally obstruct rights of way, by creating ditches or water features, are required to provide a bridge or other suitable structure on the Definitive line of the right of way. Diverting the path retrospectively is not normally an acceptable solution and the feature will normally be considered an obstruction.

Higher specifications may include extra width beyond the minimum requirements, higher parapets and additional requirements where the route is considered appropriate for equal access. The County Council will still charge up to a minimum standard but will bear the cost of the higher specification. This approach is consistent with the County Councils aim to improve Access for All that is being promoted by the Disability Discrimination Act 1995 and obligations arising as a result of the Countryside and Rights of Way Act 2000.

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9.2.10 Gypsies on a highway

When an officer receives a report of travellers or gypsies on a PRoW the following action should be taken.

If they are on a public right of way:

  1. Note number of cars/caravans if possible without putting yourself in any danger. Record the Grid Reference of location and time and date of visit as it may be needed for evidence later.
  2. Notify County Secretary's Department (Andrew Hipworth) who can them serve notice either under s143 [HA80] or S77 of the Criminal Justice and Public Order Act 1994. Failure to comply with notice may result in court action usually through the Magistrates' Court.
  3. Keep all relevant landowners, parish council(s) and meetings and local members informed at every stage. Contact local police to let them know what is happening. The police must be informed when any enforcement action is taking place or notices being served so that they can be there to assist.

If they are not on a public right of way:

  1. Notify the Gypsy Section and landholder. Check whether they are using the PRoW to access their site and whether this is legal or illegal use, which will depend on the status of the route and the nature of use.
  2. If legal, close case.
  3. If illegal, proceed as at No2 above.

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9.2.11 Intimidation

When the right to use a PRoW is challenged by the landowner in such a way that no physical obstruction takes place, possibly by verbal intimidation, threats or harassment, or by the keeping of a fierce dog to deter people using the path.

Legislation makes it an offence to use or threaten violence towards another; to use threatening, abusive or insulting words or behaviour causing alarm or harassment [Public Order Act 1986, s4, 5]. Intimidation could also constitute a public nuisance. These matters will be referred to the police.

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9.2.12 Misleading signs and notices

It is an offence to place or maintain, on or near a way shown on a definitive map, as a public path or Restricted Byway, a notice containing any false or misleading statement likely to deter the public from using the way [NPACA49 s57]. The Highway Authority has a duty to enforce these provisions.

It is also an offence, under HA80 s132, to put up, paint or inscribe without lawful authority or a reasonable excuse any picture, letter, sign or other mark upon the surface of a highway or upon any tree, structure or works in the highway.

In order to enforce the above legislation the Highway Authority has the power to remove any such sign. They may by notice require the owner or occupier of any land to remove the sign [RTRA84 s69]. Or if the owner fails to do so, the authority may remove the sign themselves and recover any costs incurred [RTRA84 s69(2)].

An inspection will confirm whether or not the sign or notice is misleading. Action will be taken to resolve the problem, this will normally be by contacting the landowner direct, but may require a formal notice if the problem persists.

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9.2.13 Obstruction by vehicles

Vehicles parking on PRoW will be regarded as an obstruction if they block access to a degree where the public cannot easily get past. This is left to the discretion of the officer in charge. Where this occurs over a prolonged period of repeated short periods then officers should treat this as a permanent obstruction. It may be appropriate to use s149 [HA80].

The owner should be notified by a notice on the windscreen asking them not to obstruct the path. Enquiries about vehicle ownership can be addressed to the Driver Vehicle Licensing Agency (DVLA) in Swansea. Write a letter enclosing as much information about the vehicle as possible (i.e. registration number, make, model, colour) to the following address:

Where the vehicle is obviously agricultural, enquiries should be made with the landowner. If the landowner should be the offender, ask them to remove the obstruction within 14 days. If the notice is not complied with or if they are not the owner then HCC shall remove it if it still remains after 14 days.

Where the obstruction is a wreck it is usually the responsibility of the District Council to remove. HCC will refer the case to the District or Borough Council.

9.2.14 Overhanging vegetation / fallen trees

The responsibility depends on whether the tree has fallen across a path from adjoining private land or if the tree had grown within the boundaries of the path. A tree that has fallen across a path from adjoining private land is the responsibility of the landowner. If the tree had grown within the boundaries of the path and fallen across, it is the Highway Authority's responsibility to remove it, as it would constitute surface vegetation (Section 5). Regardless of where the tree was growing from, it is the duty of the Highway Authority to ensure its removal as soon as possible.

The Highway Authority can require the owner of the land on which the vegetation is growing, by notice, to remove the vegetation within 14 days [HA80 s154]. It can be treated as an obstruction [HA80 s137], but it would not be considered wilful until the owner had been asked to remove it and failed to do so within the period set out in the notice. Although a landowner should remove the obstruction as soon as possible, the Highway Authority can take steps to remove a fallen tree directly and this is often the most appropriate solution.

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9.2.15 Unlawful structures / restrictions

Structures other than limitations or those legally authorised (Section 8) will be considered unlawful.

The Highway Authority can use its powers to require the removal of unauthorised structures from highways [HA80 s143, 145]. Any actions will be carried out in accordance with the procedure in Section 8.5.4. This takes the form of a notice requiring the removal of the structure within a prescribed period (28 days). There is no requirement to give a second notice. If the structure is not removed then the authority has the power to remove the structure itself and recover reasonable expenses incurred. This cannot be carried out until a month after the notice was served.

Guide to prosecutions

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