Appendix 1
GATING ORDER POLICY,
PROCEDURE & PRACTICE DOCUMENT
Using legislation brought in by
the Clean Neighbourhoods and Environment Act 2005
June 2010
CONTENTS
Page
Foreword2
Interpretation3
1.Introduction4
2.The Highway Authority’s Duties6
3.Authorisation of gates or similar structures on highways6
4.Gating Orders – Summary of Criteria7
5.Gating Orders – Application Process8
6.Consideration of Applications9
7.Evidence 13
8.Feasibility Report 13
9.Gating Order Process 14
10.Implementation of Gating Order 16
Annex 1 – Extract from the Clean Neighbourhoods and 18
Environment Act 2005 and other linked legislation
Annex 2 – Contact Details and area maps for Rights of Way 27
Officers and local Crime and Disorder Reduction Partnerships
Annex 3 – Determination of Highway Status 28
Annex 4 - Prioritisation & Timescales 30
Annex 5 – Application Forms etc 31
Annex 6 - Summary of Policy Statements 32
FOREWORD
The history and law relating to public highways is long and complex; however, throughout time there has been the underlying principle that the public at large have a right to pass and re-pass over any such highways and that nothing can be done to prevent or hinder such use without specific lawful authority or license. For instance the installation of a new stile or gate across a public footpath may constitute a criminal offence of obstructing the highway unless its installation has been properly authorised by the Highway Authority.
It is against this background that over the past decade or so there have been numerous calls for the closure of public rights of way, unrecorded public routes or alley ways in urban areas with a view to reducing crime and anti-social behaviour. These calls have, by and large, been thwarted by the lack of legislative powers available to Highway Authorities to facilitate such closure. Where such schemes have been implemented in the past their legality has always been acknowledged as being open to legal and financial challenge. It is more by luck than good management that Authorities implementing such schemes have not found themselves the subject of criminal proceedings or their expenditure the subject of audit.
It was not until the advent of the Clean Neighbourhoods and Environment Act in 2005 that practical and workable powers were made available to Highway Authorities to legally facilitate these options to close public routes.
This document sets out how Hertfordshire County Council will implement its powers to make Gating Orders for the purposes of reducing crime and antisocial behaviour.
If and when the county council considers requests for Gating Orders within the context of this policydocument they will be mindful of their obligations under Sections 6 and 17 of the Crime and Disorder Act 1998,to implement crime reduction strategies in an effort to reduce overall crime in their administrative area; and their duty under Section 130 of the Highways Act 1980 (as amended by The Highways Act 1980 (Gating Orders) (England) Regulations 2006)
to assert and protect public highways. See Annex 1
The county council will also be minded of the fact that in general, rights of way do not cause or facilitate crime; and as a consequence, anything which prevents or impedes legitimate public use of a highway must not be entered into lightly. Indeed Gating Orders will only be made in instances where the legislative criteria can be demonstrably met and where other, more traditional measures are being implemented, or have been implemented, but have not fully resolved the problem. Gating Orders are viewed as a last rather than first resort solution to problems which maybe resolved by other means.
It is fair to say that this legislation was originally intended for the management of crime and disorder on routes and alleys strictly in the urban environment and this intention is echoed in Home Office guidance on making Gating Orders but, due to the specific wording of the legislation it appears it can be equally applied on most highways including for instance roads in rural areas as well.
It may be difficult to balance the needs of residents suffering crime or disorder with the needs of legitimate users of these routes. Any consideration to implement a Gating Order at a particular location must be viewed against the local background and the likelihood of it making a meaningful difference in the area.
INTERPRETATION
Within this document the following terms shall be so defined:
Gating Order
‘Gating Order’ shall refer to the closure of a ‘relevant highway’ by the installation of a movable or removable barrier (e.g. a lockable gate) which is temporary in nature.
Relevant Highway
‘Relevant highway’ applies to any highway (including any footpath, bridleway, restricted byway or byway open to all traffic) except those designated as a special road, trunk road, classified or principal road, strategic road (within the meaning of sections 60 and 61 of the Traffic Management Act 2004 (strategic roads in London)); or any highway of such other description as regulations may prescribe.
There is no requirement within the legislation for a relevant highway to be recorded on the Definitive Map and/or the List of Streets Maintainable at Public Expense; however in instances where a route is not so shown, it will first be necessary to establish public highway status.
The legislation and this policy document do not apply to routes which do not enjoy public highway status. Such routes are not matters over which the Highway Authority will become involved. However, as part of an application, it may be necessary to undertake an investigation to establish whether an apparently unrecorded route does in fact posses some form of public status.
Highway Authority
‘Highway Authority’ means Hertfordshire County Council.
Anti-Social Behaviour
“Anti-social behavior” means behavior by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as himself.
Policy AG 1:The issue of whether public highway rights exist along any route that is subject to a Gating Order request will be considered first and determined on a case-by-case basis by the Highway Authority. A Gating Order will not be progressed where there is any dispute over the existence, or otherwise, of public highway rights.
1. INTRODUCTION
There is evidence to show that especially in urban or metropolitan areas Gating Orders have significantly reduced domestic burglary (London, Liverpool and York). Nevertheless the fact that an access or alleyway to property is or is not a public right of way will do little to deter a criminal with hostile intent. Furthermore, application of a Gating Order may only serve to displace antisocial behaviour elsewhere, not prevent it.
The provisions introduced by the Countryside and Rights of Way Act 2000 allowed for the diversion or extinguishment of certain highways for the purposes of crime prevention. These, whilst given much publicity, which in turn raised public expectation, were found to be cumbersome and difficult to implement. In April 2005 the Clean Neighbourhoods and Environment Act introduced the concept of Gating Orders which addressed many of the obstacles that were prevalent in the earlier legislation.
It is only since 2005 that Highway Authorities have been afforded workable powers to address problem alleyways. It should be understood that under these provisions the right of the public to use a particular way is not extinguished, it is simply restricted. The routes remain public highways, for which the Highway Authority is responsible. They cannot be subsumed into adjoining properties or gardens.
Government advice suggests that where the intention is to permanently gate the highway, the provisions introduced by the Countryside and Rights of Way Act 2000 (CRoW Act) should be used. However, given the longer timescales under the CRoW Act and that the condition of the highway may warrant quick action, the Clean Neighbourhoods and Environment Act provisions may be used to gate the highway, while seeking a CRoW Act order to revoke the highway status.
Hertfordshire County Council differs with this advice because it is of the view that if crime and anti-social behaviour are effectively reduced by the implementation of a Gating Order, it will no longer be possible to meet the criteria of the CRoW Act provisions. Similarly, if the gating of a route does not reduce crime and anti-social behaviour then it may not be expedient to close the highway under the CRoW Act provisions as it will not achieve the desired end.
Hertfordshire County Council will consider requests for Gating Orders, subject to the application being properly supported by evidence; confirmation that it can be lawfully implemented; and proof that the needs of the wider community have been fully considered and taken into account.
This document sets out Hertfordshire County Council’spolicy and procedure for dealing with requests for the closure of highways, for the purposes of reducing crime and anti-social behaviour and the implementation of any subsequent works. Such requests will generally be considered in the context of the provisions for Gating Orders, contained within the Clean Neighbourhoods and Environment Act 2005, unless other legislation is found to be more appropriate.
Policy AG2: Hertfordshire County Councilwill consider requests for the closure of highways on the grounds of reducing crime and anti-social behaviour, subject to any such closure being properly supported by evidence and being capable of being lawfully implemented.
2. The Highway Authority’s Duties
Hertfordshire County Council has a statutory duty to assert and protect the rights of the public on all public highways, whether recorded on the Definitive Map and Statement and/or the List of Streets Maintainable at Public Expense or otherwise, and failure to undertake this duty could result in the Council acting unlawfully. This responsibility includes the requirement to remove any unlawful structures or obstructions by enforcement action if necessary. This duty has to be carried out in a consistent manner across the network and within the legal framework.
The county council also has a duty, along with the police and other ‘responsible authorities’, to reduce and prevent crime within their administrative area.
When assessing applications for closure there is a potential conflict between these two duties. The county council must therefore exercise caution before embarking upon any proposals that may adversely effect or interfere with the rights of the public to pass and re-pass along any public highway, or potential public highway.
3. Authorisation of gates or similar structures on highways
Before considering the gating of a highway, for the purposes of preventing or reducing crime it is important to have an understanding of the legal framework within which the county council must work.
Any structure, including a gate that opens and closes freely, that is installed within the bounds of any public highway is an obstruction and will be unlawful unless it has been licensed by the Highway Authority. The circumstances under which gates or other structures can normally be installed on public highways are strictly controlled by the provisions of the Highways Act 1980, and even if lawfully installed, such gates or structures cannot be locked or used to prevent free passage by any legitimate user. The criteria for the authorisation of these gates or structures are clear and unambiguous. The route concerned must be a footpath or bridleway, the land concerned must be in use for agricultural purposes and the gates or structures must be required for the purposes of controlling the ingress or egress of animals.
The only other circumstances where gates or barriers can be erected is for the purposes of public safety, but again such structures cannot be locked or used to prevent free passage by any legitimate user. For example, a structure might be needed where a right of way running through a public park emerges onto a busy or high speed road.
It is clear that a request for the closure or gating of a way for the purposes of preventing or reducing crime will not satisfy any of these criteria.
The only way in which a gate or barrier can be a) lawfully installed and b) locked or used to restrict access over or along a public highway is by virtue of the powers introduced by the Clean Neighbourhoods and Environment Act 2005, which makes provision for Gating Orders. Once again the circumstances under which a Gating Order may be made are strictly defined within the legislation and unless the said criteria can be satisfied, the highway cannot lawfully be gated.
Policy AG3: The county council will not permit the installation of any gate, barrier or other structure in, on or across any public highway, otherwise than allowed by law.
4. GATING ORDERS – SUMMARY OF CRITERIA
As mentioned above a Gating Order can only be made and gates installed if the specific criteria of the legislation can be demonstrably met. If the county council’s decision to make a Gating Order is challenged, it may have to defend its decision at either a public inquiry or in the high court. It is therefore essential that any decision to make a Gating Order is supported by good evidence. The tests that have to be met are summarised below and an extract of the legislation is included at Annex 1.
Preliminary Considerations
Before making a Gating Order the county council must be satisfied that the route to which the application relates is a relevant highway.
However, even if the way is a relevant highway a Gating Order may not be made if the highway is the only or principal means of access to any dwelling.
In relation to a highway which is the only or principal means of access to any premises used for business or recreational purposes, a Gating Order may not be made so as to restrict public access during periods when those premises are normally used.
Evidential Considerations
Subject to the above, before making a Gating Order the county council must also be satisfied that:
i)the premises adjoining or adjacent to the highway are affected by crime or anti-social behavior; and
ii)the existence of the highway is facilitating the persistent commission of criminal offences or anti-social behavior.
These points will have to be proved by the production of evidence such as police crime data, personal crime or incident logs / diaries etc.
Other Considerations
The county council must also consider whether it is expedient to make the order having taken into account all of the relevant circumstances including:
i)the likely effect of making the order on the occupiers of premises adjoining or adjacent to the highway;
ii)the likely effect of making the order on other persons in the locality; and
iii)in a case where the highway constitutes a through route, the availability of a reasonably convenient alternative route.
The county council must also consider the proposals taking into account the needs of people with disabilities, for whom such routes may provide substantially more convenient routes to local amenities.
Finally, whilst Gating Orders are unlikely to have any significant impact on the natural environment, the county council will, in line with many of its functions, also have to consider any effects the proposals will have on biodiversity, nature conservation, agriculture and forestry.
5. GATING ORDER APPLICATION PROCESS
Pre Application Inquiries
Initial enquiries with the county council
It is recommended that anyone seeking a Gating Order, before submitting any formal application, first contacts the county council and speaks to the Rights of Way Officer or Highways Officer for the area. A contact list by area is appended at Annex 2.
The appropriate officer will be able to advise whether there is a current application relating to the route already in the system and, subject to the advice in Annex 3, whether the route concerned is a relevant highway.
Initial enquiries with the Crime and Disorder Reduction Partnership
Potential applicants should also contact their local Crime and Disorder Reduction Partnership and ask them to give a preliminary indication whether they will:
- be able to provide any evidence to support the application (they do not need to actually provide it at this time);
- give an indication as to the priority category that the application may fall (Annex 4);
- give a without prejudice indication of whether they will support the application;
- fund the cost of processing the application including preliminary surveys;
- fund any subsequent Order and works to implement the proposal; and
- fund the future management and maintenance of the gates.
The local Crime and Disorder Reduction Partnershipwill provide this information to potential applicants on Form HCC/AG1 (Annex 5) accompanied by a map showing the relevant highway.
Funding the application and any subsequent orders and works etc
The county council has no budget provision for the implementation and future maintenance/management of gating schemes. Applicants will have to satisfy the county council, as part of the application process, that sufficient funding will be provided from outside/third party sources (e.g. via the local Crime and Disorder Reduction Partnership).