Reporting obstructions (England and Wales)
What is an obstruction?
- Not all obstructions are obstructions in law. Legally, an obstruction is anything that “prevents the convenient use of the way by passengers”, and “substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature”.
- An obstruction need not block the whole way, but just partially restrict access to it, e.g. where the height of a stile or gate has been increased, or where there are obstructions on the verge on either side.
- In deciding whether an obstruction is an obstruction in law, the court must consider “all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause actual obstruction.”
- As the exact nature of an ‘obstruction’ is not defined in law, it is difficult to predict how a court will react to any particular example.
What about gates, stiles and fences?
It is possible to declare an obstruction, such as a gate, stile or fence, at the time the path is dedicated as a right of way. Obstructions present then must appear on the definitive map (a map of all recorded public rights of way in the area), and be included in the written statement that accompanies it. It is not possible to have these obstructions removed through legal process.
The declared obstruction must remain in the state it was declared in. Raising the height of a gate or stile creates an obstruction, and the landowner would be required to return it to its condition at the time of dedication.
It is far less common for a fence to cross a path or way because they are designed to prohibit access, and it is less likely that the way would have been dedicated in the first place. However, where this has occurred, the fence must be kept in the condition it was in at time of dedication.