For six years the Council have been committing a criminal offence at Otterpool

Folkestone & Hythe District Council have since taking ownership of the land  on the west side of Otterpool Lane, Sellindge (Lots 1, 2 & 3 below), been committing a criminal offence. It’s been ongoing for more than six years.

 

For those of you who might not be aware, it is a criminal offence to obstruct a public right of way, which is classified as a highway. A highway is any way over which the public have a right to pass and re-pass including footpaths, bridleways, restricted byways or byways open to all traffic.

The obstruction of the highway is a public nuisance.  A public nuisance may be committed by an act or omission.

A public nuisance is a crime against the public, not an individual. In the context of highway use, it is the nature of the conduct and the likelihood of causing nuisance that is in question. Being a crime against a community, it’s not necessary to identify any particular individuals who have suffered. Indeed, it is inevitable that many of those suffering could never be identified.

Proving the offence does not depend on whether anyone has taken action as a consequence. The prosecution doesn’t make the crime; it is still a crime even if not prosecuted. Lack of proceedings (or even complaint) does not indicate lack of nuisance.

The Shepway Vox Team’s view is supported by both the Blue Book and the Planning Inspectorate guidance.

A nuisance is something that materially affects the reasonable comfort and convenience of the public when exercising their lawful rights. To commit a public nuisance is a crime at common law.

Section 137 of the Highways Act 1980 makes it a criminal offence for any person, without lawful authority or excuse, to wilfully obstruct free passage along a highway. A person found guilty of an offence under this section of the Act is liable to a fine of up to £1000.

Under amendments made by the Countryside and Rights of Way Act 2000, a court has the power to order anyone convicted of an offence under Section 137 of the Highways Act to remove the offending obstruction. Failure to comply with such a court order is a second offence punishable by a fine of up to £5000. If the obstruction is not removed following conviction for the second offence then a third offence is committed punishable by an additional fine of up to £250 for each day the obstruction remains in place.

Running across Lots 1, 2 and 3, now owned by the Council, are two footpaths

Footpath 1 [Lot 1] –  Code 0165/HE315/1, Parish Lympne

Footpath 2 [Lot 2 & 3] – Code 0165/HE316/1, Parish Lympne

These can been seen on Kent County Council’s Public Rights of Way Map here

KCC’s public right of way map clearly shows the footpaths marked as open for use, rather than stopped up.

Both footpath’s have been wilfully obstructed by the landowner, as they have not restored the footpaths after they have been ploughed.

Footpaths can be ploughed, if they cross fields. However, a minimum width of 1 metre [2m for a bridleway] must be made available within 14 days of ploughing. And it’s the landowners responsibility to ensure the obstruction is put right. And the land owner is… yes FHDC.

Below are images taken from Google in March 2009, May 2021 and aerial shots in 2022. It’s clear that in 2009, footpaths on Lot 1 & Lot 2 & 3,were visible and the public were able to pass and repass unobstructed.  However, by 2021, crops (vegetation) blocked both footpaths, meaning the Council were committing a criminal offence because they were allowing wilful obstruction due to crops covering the footpaths, and continue to do so in 2022.

This slideshow requires JavaScript.

Lord Justice Denning, former Master of the Rolls, said of public nuisance

A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large. Take the blocking up of a high or the non-repair of it. It may be a footpath very little used except by one or two householders. Nevertheless the obstruction affects everyone indiscriminately who may wish to walk along it

So what is the solution to stop the council from continuing to commit this criminal offence?

The highway authority is defined by the Highways Act 1980 section 1 as being the body responsible for maintaining highways, which include public rights of way. In this instance it’s Kent County Council. One can report this problem of wilful obstruction of the two footpaths to them ⇒ here, quoting the willful obstruction of the footpaths, or to prow@kent.gov.uk, quoting the codes above. It’s KCC who have the power to prosecute or cut the crop and send the bill to the landowner.

Highways are protected by the Highways Act 1980.  Under this act, it is a criminal offence to obstruct or damage a highway.  Every highway authority [KCC in this instance] has a duty, set out under section 130 of the Highways Act 1980, to:

assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste that forms part of it.

and further, the highway authority has a duty to:

prevent, as far as possible, the stopping up or obstruction

of a highway in its area.

You could approach Lympne parish council, to ask if they would make representations to KCC as the highway authority.  It’s clear the highway [which a footpath is] has been wilfully obstructed by the crops as the images from Google show.

Alternatively, further action can be taken by members of the public if KCC as the highway authority fails to act.  The legislation enables, in certain circumstances, the public to take action through a process of serving notices on KCC to compel them to carry out its duty.  This requires KCC to respond, stating what action they propose to take, and by when.  These processes are described in the section 130A process, whereby you can require KCC to take action against the illegal and wilful obstruction of these two footpaths, or the section 56 process by which you can require KCC to restore a path which is out of repair.

This blog post is not to be taken as qualified legal advice but it has been written with the assistance of lawyers who have confirmed the views expressed.

The Shepway Vox Team

Do FHDC have Amnesia about their responsibilities to the footpaths of the district?