“As the compromise has no legal standing it is of course open to challenge”

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Kirklees Council is responsible for some 700 odd miles of public rights of way. Along with maintenance its statutory duties include the provision to “assert and protect” the rights of members of the public to use such ways and to “prevent as far as possible their stopping up”. It is not a neutral player when footpath obstructions are reported but there to ensure any reported problems are dealt with promptly so that the public can access the rights of way network.

One would hope that any local highway authority could stick to its clearly defined role on enforcement, act in the public interest and within its own policies and the legislative framework laid down by government. There are instances on this blog of the council failing to do this. Not all can be put down to cock ups. A good example of the council acting against the public interest and outside its statutory role on public rights of way is the obstruction of Colne Valley Public Footpath 80. The information used in this article is from a freedom of information request 16974

It is worth mentioning at this point that any gate, stile or other structure on a public right of way must be properly authorised by the council as a legal limitation. Usually this just means the gate or stile was recorded in situ at the time the path was surveyed. Any subsequent new gate or stile could only be authorised in very limited circumstances such as agriculture or forestry. The recent case of Herrick v Kidner further clarifies the law making it clear that electric security gates are both a physical and psychological obstruction to public rights of way.

How then does our local council come to an arrangement on Colne Valley Public Footpath 80 which permits a 5 year obstruction of the route by an electric security gate? In the words of the senior council employee (Head of Parks & Open Spaces) who sanctioned the arrangement “As the compromise has no legal standing it is of course open to challenge”

A frank admission there that the council is acting outside the law in agreeing to the illegal obstruction of Colne Valley Footpath 80 and seemingly happy to deny public access and wait for a member of the public to challenge the “compromise”.

The sorry tale began in July 2013 when a local councillor reported the obstruction on behalf of members of the public. Several other members of the public also reported the obstruction. Frontline staff played it by the book following the council’s policy of making an informal approach to resolve the problem and when this failed serving a formal notice under s143 of the Highways Act.

The landowner responsible for the gate obstruction made a complaint to Kirklees about how the situation was being handled in early November 2013 (the complaint was not upheld) and at this point things go badly wrong.

Rather oddly the Head of Environmental Health becomes involved and meets the landowner on site in early December 2013. Subsequently the deadline on the s143 notice Kirklees have served on the gate is extended for 2 months and when this deadline is reached a further 2 month extension is granted by Kirklees.

The second extension to the deadline comes only a few days after the council’s corporate complaints officer responds to the landowners complaints as follows “The service are satisfied that the line of Colne Valley Public Footpath 80 has been incorrectly diverted to the front of your property. The advice I have received from our legal services department does support the stance of the service; that unless there was particularly good cause not to progress action to correct the route, the council should exercise its duty to ensure the line of the path is preserved. This all means that I have concluded that the stance of the service and its advice to you does not appear to be unreasonable in the circumstances. The council therefore anticipates that you will be opening the line of the footpath.” That all seems very clear and reasonable. Odd then that nearly 5 years later the electric security gate is still there.

Unfortunately whilst playing a straight hand on one front the council were negotiating with the landowner to allow the illegal gate to remain in situ. Remarkably the corporate customer complaints officers’ letter, having explained that the council have acted properly, concludes by saying “The more recent discussions you have held have discussed the possibility of retaining the gate across the line of Colne Valley public footpath 80, but with some kind of opener for pedestrians. I understand that whilst this suggestion might appear to offer a pragmatic way to help resolve the issues, technically there should be no obstruction or structure of any kind across the route. Therefore should the council receive further complaint about the route specifically because a gate was obstructing the way, it would have to review the position.

So there you have it Kirklees Council, the highway authority for Colne Valley Public Footpath 80 agreeing, in writing, to the obstruction of a public footpath. This goes against the council’s explicit statutory obligations, is not in the public interest and is arguably in contravention of the code of conduct applying to those holding public office.

It’s very clear from the correspondence contained within FOI 16974 that the councils specialist officers and legal services advice that the gate should be removed has been ignored in favour of allowing the gate to remain, in the full knowledge that this is illegal. What is not clear is who has authorised this decision and on what legal basis. There seems to be little on the record about this decision, which is odd given it is such a significant departure from the councils statutory obligations.

On the face of it this is a fairly straight forward problem with a solution that should not cost the taxpayer a penny. Either the landowner removes the gate or the council do and recharge the cost. Yet the gate is still there. The costs to taxpayers must be significant given the amount of officer time involved – Rangers,Prow Officers, supervisors, middle managers, Head of Parks & Open Spaces, Head of Environmental Health, Principal Legal Officer and ,copied into a number of emails and briefed by the Head of Environmental Health, the Director of Place at the time and now Chief Exec of Kirklees – J Gedman. That is some bill to the taxpayer and of course all for absolutely nothing as the path remains obstructed to this day.

Of course the freedom of information request does not reveal the whole story. It would be interesting to know why maintaining an obstruction on this public footpath is so important to Kirklees Council that it is willing to go against its own legal advice and invest so much money in doing so.

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