| HIGHWAY — Public path — Gating order — Footpath facilitating commission of criminal and anti-social behaviour — Defendants issuing orders closing footpath — Whether behaviour “persistent” — Whether complete closure justified — Highways Act 1980, s129A, as inserted by Clean Neighbourhoods and Environment Act 2005, s2
The Ramblers’ Association v Coventry City Council: [2008] EWHC 796 (Admin); [2008] WLR (D) 116
QBD: Michael Supperstone QC: 17 April 2008
Before ordering the closure of a footpath under s 129A-129G of the Highways Act 1980, as inserted by s 2of the Clean Neighbourhoods and Environment Act 2005, a council had to be satisfied under s 129A(3)(b) that, at the date of the order, the footpath had facilitated prolonged criminal or anti-social behaviour. In assessing whether the order was expedient under s 129A(3)(c) the council was entitled to consider issues of utility, cost and practicality.
Michael Supperstone QC, sitting as a deputy judge of the Queen’s Bench Division, so held when refusing an application by the claimant Ramblers’ Association under s 129D of the 1980 Act for the quashing of two gating orders made by the defendant, Coventry City Council, closing a foothpath in its area. The first order was made on the basis of a report stating a history of the foothpath facilitating crime and anti-social behaviour in the area and there had been no change between August 2006 and January 2007 in those characteristics. The report also stated that the cost of employing a person to lock and unlock the gates each day were estimated at £3, 650 per annum for an independent lay person and £10, 950 for the Emergency Services Unit. To avoid that cost the second order, which was made to correct and clarify the first order, included a provision that “No person shall at any time proceed or at any time cause or permit any vehicle or pedestrian to proceed” over the footpath, thus closing the foothpath completely. The claimant argued that no reasonable authority properly directing itself on the law could reasonably have been satisfied on the evidence presented in the first report that the s 129A(3)(b) conditions requiring the persistent commission of crime or anti-social behaviour to justify an order, were fulfilled in relation to the footpath. The claimant also contended that it had not been expedient within the meaning of s 129A(3)(c) to make such an extensive restriction in the second order.
THE DEPUTY JUDGE said that the council was obliged under s129A(3)(b) to consider the position as at the date of the making of the order. Furthermore the words “persistent” commission of criminal offences and anti-social behaviour in that section were to be given their ordinary usage and were commonly understood to mean “continuing or recurring; prolonged”. There was no basis on the evidence for suggesting that the defendant had fallen into error in this regard. S 129A(3)(c) required the council to be satisfied that “it is in all the circumstances expedient to make the order for the purposes of reducing crime or anti-social behaviour”. Utility, cost and practicality of a lesser restriction were all factors which might be taken into account when considering whether or not to impose a blanket restriction. The defendant did not err in taking resource implications into account in its approach to that issue or reach a perverse decision on the available evidence.
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