web page is not definitive, but may be useful as a starting point
Law And Guidance When Challenging Obstructions (physical and of attitude) To Disabled Access
When most gates, stiles, and chicanes, were erected on footpaths and pavements equality legislation did not exist and even now the legislation has more gaping holes to resolving access than there are gaps in pathways to enable access. The legislation requires more clarification, this isn't unusual. Statutes, also known as Acts of Parliament, ie legislation determined by Parliament, are often unspecific and it is left to courts to determine specifics, this is known as common law or case law. Of course the decisions of courts can be appealed so, whilst previous judgements may guide not all court decisions determine the law, it has to be, in the UK, a court of record, and most cases, because of acceptance of a ruling by a more junior court, do not go that far. Given that its usually going to be down to individuals to start a court case, let alone see it through to appeal after appeal to a court of record, and most disabled people, even charities, don't have the funds to even start a case, equality legislation often remains vague. However charities and councils are not, despite public opinion, by nature obstructive, after all they were set up to serve. So most issues with removing obstructions come down to a lack of appreciation, on the part of the landowner, of the problem - best resolved by politely showing them, and a lack of funds, best resolved by pressing the issue - getting support, say from your local county councillor or MP, or by seeing if a local group of volunteers could, with the landowner's/Highways Authority's permission, do the work. I've managed to get gates and chicanes removed both by simply showing the problem, as well as showing and pressing - followed by getting support, so I know that it almost always works where the land is owned by a council or charity, such as a wildlife trust, though an appreciation of the law, such as it stands, is important when going into negotiation, not as an early truncheon, but as a gentle persuader if needed.
The problem is less simple when it comes down to privately owned land, in which case the owner's good will, their available funds, and legislation become paramount, after all they are a business, not a service. The Highways Authority of county councils are the body needed, and responsible for maintaining and enforcing rights of way (RoW). As Wiltshire Council records "maintaining the highway network is a statutory duty and RoW are highways."*, hence it coming down to the Highways Authority of the relevant council, though these are underfunded and understaffed, Wiltshire Council say "In 2018 the Rights of Way and Countryside Service addressed2 less than 40% of problems reported. Central Wiltshire received 1146 reports, which identified 1201 tasks) or an unattainable 8 per day per inspector, if that was their only work." *. We should sympathise with the officers, but that doesn't mean letting problems slide.
The problem is less simple when it comes down to privately owned land, in which case the owner's good will, their available funds, and legislation become paramount, after all they are a business, not a service. The Highways Authority of county councils are the body needed, and responsible for maintaining and enforcing rights of way (RoW). As Wiltshire Council records "maintaining the highway network is a statutory duty and RoW are highways."*, hence it coming down to the Highways Authority of the relevant council, though these are underfunded and understaffed, Wiltshire Council say "In 2018 the Rights of Way and Countryside Service addressed2 less than 40% of problems reported. Central Wiltshire received 1146 reports, which identified 1201 tasks) or an unattainable 8 per day per inspector, if that was their only work." *. We should sympathise with the officers, but that doesn't mean letting problems slide.
"maintaining the highway network is a statutory duty and rights of way (RoW) are highways."
Public rights of way: local highway authority responsibilities - England
https://www.gov.uk/guidance/public-rights-of-way-local-authority-responsibilities
From: Natural England
Published 11 September 2014
Last updated 7 December 2015 — See all updates
As a local highway authority (usually a county council or national park authority) you have statutory duties to record and keep public rights of way open.
Recording routes and locations
Highway authorities must keep a record of public rights of way and make sure they are open for public use.
The legal record of a highway authority’s rights of way network is known as the ‘definitive map and statement’.
Rights of way circular (1/09) explains the highway authority’s statutory duty to record, manage and maintain, protect and change public rights of way.
The guide to definitive maps and changes to public rights of way has more detail about your legal duty to record public rights of way.
Maintaining and protecting public rights of way
The highway authority must:
Removing obstructions
It’s an offence to obstruct or block a public right of way. Anyone can report an obstruction to the local authority and request that it is removed.
You must:
Guidance on maintaining public rights of way
Read the following guides to help with maintaining public rights of way:
Rights of way improvement plans
Most highway authorities will already have a rights of way improvement plan. You must review the plan every 10 years. You should also monitor your progress towards implementing it and meeting targets you have set. Read the guidance on rights of way improvement plans for information on how to prepare, publish, assess and review your plans.
Protecting wildlife and habitats
While carrying out maintenance or improvements, you must have regard for the conservation of biodiversity. Read section 6.32 of rights of way circular (1/09) for more detail.
A highway authority has the power to divert a public right of way from a Site of Special Scientific Interest (SSSI) if public use of it is causing damage to the special features of the SSSI. For further information, read the guide on SSSI: public body responsibilities.
Access and equality for disabled users
You must consider the needs of people with mobility problems and other disabilities. Section 5.4 of the rights of way circular (1/09) gives more detail about the requirements.
There are no mandatory requirements for how to approve structures on a public right of way, but you must comply with the Equality Act 2010.
Improvements
You should make improvements to public rights of way so they are accessible to all users, eg stiles should be replaced with gaps or gates, wherever possible.
Before making improvements you should consider the:
New structures
When creating a new public right of way or diverting an existing one you should:
Policies
You should develop a policy about structures on public rights of way either as part of your Rights of Way Improvement Plan or as part of a wider policy on the Equality Act. Make sure that the policy states that structures on public rights of way must be built to the most accessible standard possible.
Recording historical public rights of way (pre-1949)
Your duty to keep public rights of way open and record their location also applies as much to historical public rights of way.
A stakeholder working group on unrecorded public rights of way, commissioned by Natural England, made a range of agreed recommendations to government in 2010.
The recommendations are intended to:
Published 11 September 2014
Last updated 7 December 2015 — See all updates
As a local highway authority (usually a county council or national park authority) you have statutory duties to record and keep public rights of way open.
Recording routes and locations
Highway authorities must keep a record of public rights of way and make sure they are open for public use.
The legal record of a highway authority’s rights of way network is known as the ‘definitive map and statement’.
Rights of way circular (1/09) explains the highway authority’s statutory duty to record, manage and maintain, protect and change public rights of way.
The guide to definitive maps and changes to public rights of way has more detail about your legal duty to record public rights of way.
Maintaining and protecting public rights of way
The highway authority must:
- keep the surface of public rights of way which are maintained at public expense in a fit state for public use
- make sure obstructions are removed
- maintain some bridges over natural watercourses, including farm ditches
- provide at least a 25% contribution to landowners’ costs for replacing and maintaining structures for the control of animals, eg gates or stiles, on completion of the work to a standard the highway authority is satisfied with
- make sure there are no notices that prevent or discourage the use of a public right of way
- add signs where a public right of way leaves metalled roads
- make sure the public’s rights to use a public right of way are protected
- make sure landowners carry out their duties, and take action if they don’t
Removing obstructions
It’s an offence to obstruct or block a public right of way. Anyone can report an obstruction to the local authority and request that it is removed.
You must:
- respond to all requests within 1 month to confirm receipt
- contact the person who complained to tell them what action you’re taking
- make sure the obstruction is removed, either by the local authority or the person responsible for it (you can charge them a fee to remove it)
Guidance on maintaining public rights of way
Read the following guides to help with maintaining public rights of way:
- Rights of way circular (1/09)
- Waymarking public rights of way
- Definitive maps and changes to public rights of way
Rights of way improvement plans
Most highway authorities will already have a rights of way improvement plan. You must review the plan every 10 years. You should also monitor your progress towards implementing it and meeting targets you have set. Read the guidance on rights of way improvement plans for information on how to prepare, publish, assess and review your plans.
Protecting wildlife and habitats
While carrying out maintenance or improvements, you must have regard for the conservation of biodiversity. Read section 6.32 of rights of way circular (1/09) for more detail.
A highway authority has the power to divert a public right of way from a Site of Special Scientific Interest (SSSI) if public use of it is causing damage to the special features of the SSSI. For further information, read the guide on SSSI: public body responsibilities.
Access and equality for disabled users
You must consider the needs of people with mobility problems and other disabilities. Section 5.4 of the rights of way circular (1/09) gives more detail about the requirements.
There are no mandatory requirements for how to approve structures on a public right of way, but you must comply with the Equality Act 2010.
Improvements
You should make improvements to public rights of way so they are accessible to all users, eg stiles should be replaced with gaps or gates, wherever possible.
Before making improvements you should consider the:
- historical character of existing structures and the landscape
- needs of other users, eg parents with children in pushchairs
- accessibility of the route as a whole
- needs of the landowner - you should negotiate with the landowner to make improvements to existing structures
New structures
When creating a new public right of way or diverting an existing one you should:
- keep the number of structures to a minimum - there must be a reason for each one
- use the most accessible type of structure available, eg a gap or gate rather than a stile
- detail each type (standard and design) of structure clearly in the legal documentation - you might need to refer to this in future if the use of the land changes or if you need to prove why certain structures were used
Policies
You should develop a policy about structures on public rights of way either as part of your Rights of Way Improvement Plan or as part of a wider policy on the Equality Act. Make sure that the policy states that structures on public rights of way must be built to the most accessible standard possible.
Recording historical public rights of way (pre-1949)
Your duty to keep public rights of way open and record their location also applies as much to historical public rights of way.
A stakeholder working group on unrecorded public rights of way, commissioned by Natural England, made a range of agreed recommendations to government in 2010.
The recommendations are intended to:
- find out where pre‐1949 public rights of way exist and prevent them from disappearing
- make the procedure for recording historical public rights of way simpler and easier to understand
- make procedures more flexible to reduce any conflict with modern land use
- set a high level of performance for all local authorities
- reduce unreasonable objections
- encourage authorities to look for ways to integrate the management and administration of the highways network
The Countryside Code: Advice for Land Managers
updated 07 February 2022
click
Countryside and Rights of Way Act 2000
click
The Equality Act 2010
"The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society.". Disabled people, as well as, for example, people from a different race or religion, are covered by the Act.
Provisions relating to disability
• extending protection against indirect discrimination to disability
• introducing the concept of “discrimination arising from disability” to replace protection under previous legislation lost as a result of a legal judgment
• applying the detriment model to victimisation protection (aligning with the approach in employment law)
• harmonising the thresholds for the duty to make reasonable adjustments for disabled people
• extending protection against harassment of employees by third parties to all protected characteristics
• making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health
Provisions relating to disability
• extending protection against indirect discrimination to disability
• introducing the concept of “discrimination arising from disability” to replace protection under previous legislation lost as a result of a legal judgment
• applying the detriment model to victimisation protection (aligning with the approach in employment law)
• harmonising the thresholds for the duty to make reasonable adjustments for disabled people
• extending protection against harassment of employees by third parties to all protected characteristics
• making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health
(Court of Appeal (Civil Division) On Appeal From The High Court Of Justice Queen's Bench Division (Planning Court) CO/3695/2019 - Between: Paul Garland and Haroun Salaman appellants - and – Secretary Of State For Environment , Food And Rural Affairs respondent - and – Surrey County Council interested party
Paul Garland and Haroun Salaman appealed a previous decision to reclassify a route as a bridleway (requested by cyclists to formalise an existing use), they wanted to stop cyclists, and horse riders from using the route, something that there was historical evidence of happening. The decision is relevant to obstructions stopping disabled access - a restriction (physical or otherwise, eg: gate; chicane; stile; or designation) to stop an unlawful use of a right of way (RoW), in this case a bridleway, must not be imposed in such a way that it stops lawful use. So, for example, if pedestrians are allowed to use a route you can't put up a chicane that would stop mobility scooters going through, just because you've got a problem with motorcyclists illegally using the route.
The court of record in 2021, (Court of Appeal (Civil Division) On Appeal From The High Court Of Justice Queen's Bench Division (Planning Court) CO/3695/2019 - Between: Paul Garland and Haroun Salaman appellants - and – Secretary Of State For Environment , Food And Rural Affairs respondent - and – Surrey County Council interested party). In this case Lord Justice Bean, Lord Justice Stuart-Smith and Sir Patrick Elias ruled: "41. Mr Salaman's second point was that in practice motorcycles use the route, notwithstanding that they are not entitled to do so, and that they are a menace to pedestrians. I have considerable sympathy with this complaint but the motorcycles are not lawfully there and their presence raises an issue of law enforcement. It is difficult to see how denying bicycles the right to use the route would stop motorcycles, unless the argument is that if bicycles are forbidden to use the track, there is less chance that motorcycles will do so. Even if that is true, however, it cannot possibly be justified to prevent bicycles from taking advantage of what would otherwise be a lawful use of the track in order to inhibit the unlawful use by motorcycles." http://www.bailii.org/ew/cases/EWCA/Civ/2021/1098.html
The court of record in 2021, (Court of Appeal (Civil Division) On Appeal From The High Court Of Justice Queen's Bench Division (Planning Court) CO/3695/2019 - Between: Paul Garland and Haroun Salaman appellants - and – Secretary Of State For Environment , Food And Rural Affairs respondent - and – Surrey County Council interested party). In this case Lord Justice Bean, Lord Justice Stuart-Smith and Sir Patrick Elias ruled: "41. Mr Salaman's second point was that in practice motorcycles use the route, notwithstanding that they are not entitled to do so, and that they are a menace to pedestrians. I have considerable sympathy with this complaint but the motorcycles are not lawfully there and their presence raises an issue of law enforcement. It is difficult to see how denying bicycles the right to use the route would stop motorcycles, unless the argument is that if bicycles are forbidden to use the track, there is less chance that motorcycles will do so. Even if that is true, however, it cannot possibly be justified to prevent bicycles from taking advantage of what would otherwise be a lawful use of the track in order to inhibit the unlawful use by motorcycles." http://www.bailii.org/ew/cases/EWCA/Civ/2021/1098.html
"41. Mr Salaman's second point was that in practice motorcycles use the route, notwithstanding that they are not entitled to do so, and that they are a menace to pedestrians. I have considerable sympathy with this complaint but the motorcycles are not lawfully there and their presence raises an issue of law enforcement. It is difficult to see how denying bicycles the right to use the route would stop motorcycles, unless the argument is that if bicycles are forbidden to use the track, there is less chance that motorcycles will do so. Even if that is true, however, it cannot possibly be justified to prevent bicycles from taking advantage of what would otherwise be a lawful use of the track in order to inhibit the unlawful use by motorcycles." [Court of Appeal (Civil Division) On Appeal From The High Court Of Justice Queen's Bench Division (Planning Court) CO/3695/2019 - Between: Paul Garland and Haroun Salaman appellants - and – Secretary Of State For Environment , Food And Rural Affairs respondent - and – Surrey County Council interested party]
That's a really useful ruling for new obstructions, but it doesn't, without goodwill, other than help guide pre-existing ones.
The British Standard for Gaps Gates and Stiles - BS5709:2018
The selection of a gap, gate or stile, which permits people to use a path crossing a boundary such as a hedge fence or stone wall, shall meet the needs of the land manager and shall cause as little restriction as possible for all lawful users. [BS5709:2018 4.1]
British Standard BS5709:2018 "This British Standard specifies field-measurable performance requirements for new gaps, gates and stiles for footpaths, bridleways, restricted byways and other routes used by the public. It can also be used for structures to be installed on permissive paths, wholly private ways and on commons. It includes a hierarchy of accessibility performance requirements to raise awareness of the characteristics of different structures. It does not attempt to provide performance requirements in relation to land management need, to be individually assessed according to the circumstances. It can be used to establish and maintain a quality in all new structures that represents good practice. This British Standard does not automatically apply retrospectively to most existing structures. It can be used as guidance for those who wish to repair or improve existing structures."
British Standard BS5709:2018 is not a legal standard, though it could ensure that the Equality Act 2010, whose aim is to give equal opportunity to disabled people, as well as others, is complied with, and the Equality Act 2010 is only there to try to ensure that the decent thing is done when there is resistance to it.
BS5709:2018 was drawn up by representatives of Natural England, CLA, NFU, OSS, BHS, Disabled Ramblers, IPROW, Highway Authority and a gate designer.
British Standard BS5709:2018 is not a legal standard, though it could ensure that the Equality Act 2010, whose aim is to give equal opportunity to disabled people, as well as others, is complied with, and the Equality Act 2010 is only there to try to ensure that the decent thing is done when there is resistance to it.
BS5709:2018 was drawn up by representatives of Natural England, CLA, NFU, OSS, BHS, Disabled Ramblers, IPROW, Highway Authority and a gate designer.
Exploring The Everyday Lives of Disabled People
Updated 20 September 2021
https://www.gov.uk/government/publications/exploring-the-everyday-lives-of-disabled-people/exploring-the-everyday-lives-of-disabled-people#chapter-8-outdoors
A half removed squeeze gate, success though.
[This research was conducted by the Disability Unit, which is part of the Cabinet Office.]
The aims of the research were to: inform cross-cutting policy development and policy announcements; enable policies developed for disabled people reflecting their lived experiences; help inform the government how to better integrate departmental policies and services
[Key Findings With Regards To Getting Outdoors:]
Pavements
Accessible pavements are key to enabling people with mobility impairments to move around freely. In our research, pavements were particularly important in rural areas, where people did not live on main roads. Inaccessible rural paths could prohibit disabled people from being able to move around their local area.
For some participants, uneven pavements in their town centre caused major issues for their wheelchairs, particularly manually powered wheelchairs. For Tony, moving his wheelchair around the town required a great deal of effort and physical strength, because of poor quality pavements. For people who use walkers, support canes, mobility canes or who have ambulatory issues, uneven pavement can also pose significant barriers. Additionally, for Tony, weather affected his ability to navigate effectively as the rain made surfaces in the streets slippery. A further complication was that the rain masked the sounds he needed to hear to identify what part of the street he was in.
The general public
The general public can lack understanding of disabled people’s needs
Importance of being outside
Being able to step outside can be critical to wellbeing, specifically for disabled people whose opportunities to venture out is often limited..
Conclusion
Participants faced difficulties when going outdoors. Inaccessible pavements and public transport, as well as the attitudes of the general public, presented various challenges.
This is a list of questions that we feel will help to direct policy and practice to accommodate disabled people with a range of impairments when using transport and public spaces: how can we ensure that all pavements are inclusive of those with impairments that impact their mobility?; how can we enhance public spaces so that they meet disabled people’s social, emotional and physical needs?; how can we ensure that everyone feels safe and supported to leave their home, when they wish to do so?
The aims of the research were to: inform cross-cutting policy development and policy announcements; enable policies developed for disabled people reflecting their lived experiences; help inform the government how to better integrate departmental policies and services
[Key Findings With Regards To Getting Outdoors:]
Pavements
Accessible pavements are key to enabling people with mobility impairments to move around freely. In our research, pavements were particularly important in rural areas, where people did not live on main roads. Inaccessible rural paths could prohibit disabled people from being able to move around their local area.
For some participants, uneven pavements in their town centre caused major issues for their wheelchairs, particularly manually powered wheelchairs. For Tony, moving his wheelchair around the town required a great deal of effort and physical strength, because of poor quality pavements. For people who use walkers, support canes, mobility canes or who have ambulatory issues, uneven pavement can also pose significant barriers. Additionally, for Tony, weather affected his ability to navigate effectively as the rain made surfaces in the streets slippery. A further complication was that the rain masked the sounds he needed to hear to identify what part of the street he was in.
The general public
The general public can lack understanding of disabled people’s needs
Importance of being outside
Being able to step outside can be critical to wellbeing, specifically for disabled people whose opportunities to venture out is often limited..
Conclusion
Participants faced difficulties when going outdoors. Inaccessible pavements and public transport, as well as the attitudes of the general public, presented various challenges.
This is a list of questions that we feel will help to direct policy and practice to accommodate disabled people with a range of impairments when using transport and public spaces: how can we ensure that all pavements are inclusive of those with impairments that impact their mobility?; how can we enhance public spaces so that they meet disabled people’s social, emotional and physical needs?; how can we ensure that everyone feels safe and supported to leave their home, when they wish to do so?
