LexisPSL Local Government, in partnership with Laura Hughes of Browne Jacobson, deals with the question of the powers available to a local authority when installing gates or barriers on public highways.
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Are there any other powers a county council can use to authorise gates on a public right of way (PROW) other than section 147 of the Highways Act 1980 (HA 1980), or utilise their own powers under HA 1980, s 66 to install a barrier on a PROW for the safety of the public users?.
The question identifies the two most applicable powers in relation to authorisation of gating of public rights of way (PROW). However, several other powers exist which enable highway authorities to gate or fence highways in certain defined circumstances. We set them out below. For general information on PROW, see Practice Note: Public rights of way.
Section 80 of the Highways Act 1980—fencing highways maintainable at public expense
If the PROW is a highway maintainable at public expense, section 80 of the Highways Act 1980 (HA 1980) gives highway authorities power to fence the PROW. However, this power cannot be used to obstruct the highway, so could not be used to put a gate or a fence across the PROW itself. Typically, this provision is used to fence in a highway, so as to prevent individuals or livestock or similar straying onto the highway unintentionally.
HA 1980, s 102—hazards of nature
If the PROW is a highway maintainable at public expense, the highway authority may provide such barriers as they think necessary ‘for the purpose of affording to the highway protection against snow, flood, landslide, or other hazards of nature…’
Compensation is payable to any person who suffers damage as a result of the execution of any works.
HA 1980, s 115B—amenity
In respect of highways to which a pedestrian planning order is in force; a restricted byway; a bridleway; a footpath; a footway; a subway constructed under HA 1980, s 69; a footbridge constructed under HA 1980, s 70; a highway whose use by vehicular traffic is restricted by a traffic order; and, a local act walkway the highways authority has the power to place objects or structures on, in or over such a highway. However, the highways authority may only exercise this power for the purposes of giving effect to a pedestrian planning order, enhancing the amenity of the highway and its immediate surroundings or providing a service for the benefit of the public or a section of the public.
Accordingly, the key question for use of this power is whether gating or fencing the highway enhances the amenity of the highway and its immediate surroundings and/or provides a service of benefit to the public.HA 1980, s 115D
Limitations are placed on what otherwise is a very wide power by the provisions of HA 1980, s 115D. Essentially, the restriction may not prevent traffic entering the highway at the point that traffic could enter it previously—so as to prevent use of vehicles previously used or so as not to prevent statutory undertakers access to the site.
Section 92 of the Road Traffic Regulation Act 1984—where traffic order is in place
Where a traffic regulation order or an experimental traffic order prohibiting the passage of traffic is in place on any highway outside of Greater London, the highways authority can place bollards, or such other obstructions as they consider appropriate for impeding passage.
The bollards or other obstruction can be an obstruction of any description whatsoever, can be fixed or moveable, and can impede passage at all times or only at certain times.RTRA 1984, s 94
Similar powers are provided for Greater London in section 94 of the Road Traffic Regulation Act 1984.