||Mr Peter Stybelski
|Deputy Chief Executive
||Mr RF Mather
|Head of Legal Services
||Mr Brian Walker
|Assistant Head of Legal Services
||Mr Richard H Claydon
(Environment and Property)
|Mr Barry Devlin
Cumbria County Council has a statutory duty to ensure that Public Highways are
free from obstructions.
Cumbria County Council know the law, they quote the Law and Court judgements in
their Employer's Work Instruction [EWI 09/011], but they completely fail to
comply with it. This has resulted in Whitehaven town centre becoming an obstacle
|What is an obstruction?
||Whether something is an obstruction will depend on the
facts of each case. It may not be necessary to show that an obstruction has actually obstructed
anything. A judgement in case law says "it is perfectly clear that anything which
substantially prevents the public from having free access over the whole of the highway which is not purely
temporary in nature is an unlawful obstruction" (Chief Justice Lord Parker of Waddington,
Seekings v. Clarke (1961)).
||But thre can be exceptions, one being with regard to
the "de minimis" principle (de minimis non
curat lex - the law is not concerned with trivia).
display projecting two feet six inches over a
pavement sixteen feet wide and a display projecting eleven inches
over a pavement seven feet nine inches wide were found by the courts to be unlawful
which could not benefit from the de minimis principle. On the other hand, a rack of newspapers
displayed by a newsagent, which projects only fractionally, was cited by the Court of Appeal as
something to which de minimis could apply.
As a guideline, no action should be taken against
projections of 100mm or less.
So for a structure to be lawful or no action will be taken :
- the structure should not project too far from the shop front (as a guide less that 100mm), or
- the business has authorisation for the structure from Cumbria County Council
Unfortunately, not one of the businesses in Whitehaven has authorisation to place a structure on the Public
Highway, so all the structure we come across should project less that 100mm from the shop
front, this is Cumbria County Council's guidelines. (It should be noted that the
only business that has applied for authorisation to put structures, tables and
chairs on the Highway, was rejected)
Let's have a very quick look at
some of the streets of Whitehaven to see if any obstructions are present:
According to Cumbria County Council none of
these pictures shows an obstruction. It is patently obvious there is a flagrant abuse of the law going on in
Whitehaven and Cumbria County Council are in dereliction of duty for allowing
this uncontrolled obstruction of the Public Highway. Cumbria County Council staff from the Chief Executive down are all
well aware of the situation in Whitehaven yet they are happy to continue condoning
this abuse of the Highways Act by the traders of Whitehaven.
Disability groups have been complaining to
the Councils for years to get some control over this mess but both Copeland Borough Council
and Cumbria County Council have repeatedly stuck there heads in the ground and
allowed this uncontrolled obstacle course to escalate completely out of control.
One disability group has performed a thorough audit for the Council and recorded
well in excess of 100 obstacles (in winter) on just three streets, the
Council's response - do nothing]
The County Council even has in place a procedure for responding to the public
about their ineffectual tackling of un-authorised obstacles placed in the
Highway, staff are encouraged to lie to the public:
||Practitioners should avoid being drawn into openly admitting that
the County Council's policy is to "turn a blind eye" in cases that do not meet its criteria for removal action. Enquirers should simply
be told that no unauthorised signs should be placed in the highway because doing so would be
illegal and might cause the highway authority or planning authority to expend scarce resources on
securing their removal.
In 2006, Cumbria County Council's policy is to "turn a blind eye"