Cumbria County Council
Policy to "turn a blind eye" to obstructions on Public Highways

Chief Executive 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
Senior Solicitor
(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 course.

What is an obstruction?

EWR 09/011

2.2 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)). 
2.3 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). 

A shop 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 obstructions 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:

King Street

Lowther Street

Market Place

Roper Street

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.
[Note. 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:

EWR 09/011

3.9 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"