Skip links

Council Slated for Indecisive Handling of Right of Way Dispute

Uneven pathIn a public indictment of a local authority’s dithering, the High Court has slated Derbyshire County Council’s handling of a minor right of way dispute that escalated into an ‘extraordinary saga’ at substantial cost to the public purse. The Court noted that the matter could have been settled at an early stage had it not been for the council’s indecisiveness.

A landowner had complained to the council that the gradient of a right of way leading up to her home had been raised by the owner of a neighbouring property. She had also objected to the installation of a flight of steps, railings and a retaining wall on the footpath and ultimately served a notice on the council under section 130A of the Highways Act 1980 requiring it to take remedial action.

The council was at first fully supportive of the landowner’s case. However, following a ‘deafening and quite astonishing silence’ on the council’s part, it performed a complete ‘volte face’, insisting that there was no obstruction of the right of way, and applied to magistrates to strike out the landowner’s application.

The council’s ‘less than impressive’ arguments were unsurprisingly rejected by the magistrates following a preliminary hearing. However, it nevertheless pressed on with the legal process and only caved in on the eve of a projected three-day hearing. The council was ordered to pay the landowners’ legal costs but challenged that decision in the High Court.

Dismissing the council’s appeal, the Court noted that that it ‘took little imagination to grasp the distressing effect’ that the council’s volte face had had on the landowner. The strong impression was that, throughout, the council had simply failed to take into account the expectations that it was creating and how its frequent changes of position would inevitably affect the landowner.

Although the council no doubt believed that each of its decisions was justified, the Court ruled that it would ‘represent a serious injustice’ if the landowner were not awarded her legal costs. Mr Justice Kenneth Parker observed: “This relatively small scale dispute could have been resolved at an early stage, allowing both substantial private and public resources to be more productively expended and saving very considerable private and public costs”.

The council was ordered to pay the landowner’s substantial legal costs of the case. It was given 28 days to pay £40,000 on account of those costs, although that is likely to be only a fraction of the final sum it will have to pay following a costs assessment. After the judge delivered his ruling, he noted: “This was a most extraordinary saga. It seems to me that the council did behave in a way that fell significantly below the standard reasonably to be expected of a public authority in dispute with a citizen”.