Guidance on Managing Footway Obstructions.pdf

Ceredigion County Council
Highways, Property and Works Department
County Hall, Market Street, Aberaeron
SA46 0AT

Guidance

on

Managing Footway
Obstructions

Huw T Morgan BSc, CEng, MICE
Director of Highways, Property and Works

Executive Summary

The Council has statutory duties as to the management of footway obstructions
and has administrative systems in place to manage highway, utility and builders’
works that cause such obstruction.

This paper examines the legal and technical framework as to other works and
uses that cause footway obstruction and recommends that the Council adopts
the following policies and practices for an improved system of management of
such obstructions to be put in place.

(1)
It is the policy of the Council to ensure that all footway obstructions
are lawful and where they are not to take steps to require the person
responsible for the obstruction to make the obstruction lawful under
this guidance or to remove it as appropriate.

(2)
With regard to any highway referred to in Part VIIA of the Highways
Act 1980 it is the policy of the Council to consider granting
permission upon the application by any person, for that person to –

(a)
carry out works on, in or over that highway;

(b)
place objects or structures on, in or over that highway
for the purpose of enhancing its amenity or that of its
immediate surroundings or providing a service to the
public or a section of the public;

(c)
maintain such works, objects or structures;

(d)
provide, maintain and operate facilities for recreation or
refreshment on that highway; and / or

(e)
use objects or structures on that highway for the
purposes of production of an income, providing
information or advice, and / or advertising

(3)
It is the policy of the Council that the minimum width of footway to
be preserved from obstruction when granting permission under Part
VIIA of the Highways Act 1980 shall be determined by the Director of
Highways, Property and Works according to the following guidance:

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Within the

Main Towns
All Other
and Larger
Areas
Settlements
Footways in general
1800 mm
1600 mm
Footways where close proximity
2000 mm
1800 mm
of adjoining vehicular traffic is
intimidating to pedestrians or
where frequent high volumes of
pedestrians merits extra width
Footways where walking-about
3000 mm
2400 mm
and looking-around make major
contributions to the shopping,
leisure or tourist experience

NB. For ‘Main Towns and Larger Settlements’ see Settlement
Proposals Map of the Ceredigion Unitary Development Plan
Proposed Modifications Version published on the internet at
http://www.ceredigion.gov.uk/media/pdf/8/5/09_UDP_PM_Inde
x_Proposals_Map.pdf
and detailed Settlement Maps and Statements at
http://www.ceredigion.gov.uk/index.cfm?articleid=3493

(4)
All permissions shall be subject to a condition requiring the licensee
to remove all or any of the permitted obstructions on request of the
Council or any statutory undertaker or public utility within such time
as prescribed in the request.

(5)
All permissions shall be limited to a maximum of one calendar year
from the date on which the permission was granted.

(6)
Breach of any condition of permission shall be a determining factor
in the consideration by the Council of any application for renewal of
that permission.

(7)
No permission granted under Part VIIA of the Highways Act 1980
shall grant or be deemed to grant permission for sale or
consumption of intoxicating liquor on a footway which is or lies
within a designated public place within the meaning of Section 13 of
the Criminal Justice and Police Act 2001.

iv

(8)
All permitted movable objects shall be removed from the footway by
the daily end time specified in the permission and shall not be
replaced on the footway until the daily start time specified in the
permission.

(9)
All permitted tables, parasols, chairs, advertisements and other
moveable objects shall be designed as to be safe and fit for purpose
so as not to endanger users of them or passing pedestrian traffic or
offend the visual amenities of the street, and shall be fixed or
weighted as to prevent them from being blown by the wind from their
permitted locations.

(10)
Breach of planning control in relation to any object placed on a
footway in pursuance of a permit granted under Part VIIA of the
Highways Act 1980 will invalidate the permit (a permit under Part
VIIA of the Highways Act 1980 does not constitute a planning
permission, listed building consent, conservation area consent or
advertisement consent under Planning legislation).

(11)
Each applicant shall be charged a fee for the processing of the
application. The fee shall be £25.00 per square metre of footway,
rounded up to the nearest £25.00 increment. No application shall be
processed unless accompanied by a cheque to the correct amount
made out to ‘Ceredigion County Council’. No part of the fee shall be
refundable in the event of the application to which it relates being
refused by the Council or in the event of the Council requiring the
licensee to remove all or any of the permitted obstructions within the
currency of the permission to which it relates.

(12)
Each applicant shall indemnify the Council against all actions,
proceedings, claims, demands and liability which may at any time be
taken, made or incurred in consequence of the presence or use of
the object(s) to which the permission relates and for this purpose
shall take out at his / her own expense a policy of insurance
approved by the Council to such value per event as shall be
determined by the Director of Highways, Property and Works and
shall produce to the Council on request current receipts for premium
payments and related confirmations of renewal of the policy.

(13)
No statutory consent shall be sought by the Council from any other
highway authority or a frontager in respect of any application under

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Part VIIA of the Highways Act 1980 unless and until the Director of
Highways, Property and Works is satisfied that the respective
proposal satisfies all other policy requirements and that the
applicant has agreed to reimburse all costs and expenses the
Council incurs in seeking those consents, even if seeking those
consents proves abortive.

(14) All permissions granted under Part VIIA of the Highways Act 1980 in
Ceredigion shall be granted subject to such conditions as may be
deemed necessary by the Director of Highways, Property and Works
of the Council.

(15) It shall be the practice of every department of the Council to consult
with the Engineering Division of the Highways, Property and Works
Department of the Council before exercising the Council’s powers
under Section 115B (Provision, etc., of services and amenities by
councils) or Section 115C (Provision of recreation and refreshment
facilities by councils) of Part VIIA of the Highways Act 1980.

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List of Contents

Page

1
Introduction
1

The Statutory Position
3

The Common Law Position
5
Managing Obstructions
5

Highway Works
5

Utility Works
6

Building Works
7

Markets and Fairs and Street Trading
7

Public Amenities
7

Highway Inspection
10
Policy Development
10

Enforcement Policy
10

Permission under Part VIIA of the Highways Act 1980
13
Recommendations
13

Ratification of inherited operational policies
14

Safeguarding standard minimum widths
16

Avoidance of fettering the Council’s powers
17

Encouraging responsible citizenship
17

Minimising clutter, danger and nuisance
18

Integration with Town and Country Planning
19

Fees and public liability insurance
20

Obtaining other statutory consents
20

Transparency, accountability and fairness
21

Streetscene management
21

Objects on Verges
22

Environmental Considerations
22

Placing of Refuse on Footways for Collection

vii

viii

Introduction

1.
Much has already been done at local, regional and national levels to
encourage use of more environmentally-friendly modes of travel than the motor
car, and one of the desired outcomes of the local community strategy, Ceredigion
2020, is to encourage more walking to create a healthier, safer, better maintained
and more attractive environment, accessible to all.

2.
At regional, national and international levels, increasing emphasis on
improving the ‘streetscene’ and ‘public domain’ is improving cooperation and
understanding between users and various interested professions and private and
public sector organisations (Paving the Way: Commission for Architecture and
Built Environment: http:/www.cabe.org.uk) and campaigns are being developed
to secure removal of unnecessary street clutter (Place-check: Urban Design
Alliance: http:/www.placecheck.info).

3.
All this promotion is creating increased public demand for greater attention
to be given to the provision, maintenance, improvement and better management
of footways.

The Statutory Position

4.
Section 130 of the Highways Act 1980 imposes duties on the Council to
assert and protect the rights of the public to the use and enjoyment of highways
for which they are the highway authority and prevent, as far as possible, their
stopping up or obstruction. Ceredigion County Council is the highway authority
for all highways in Ceredigion, apart from the trunk roads in the county.

5.
It also empowers the Council to assert and protect the rights of the public
to the use and enjoyment of any highway for which it is not the highway authority,
and imposes a duty on them to prevent the stopping up or obstruction of such
highways, as far as possible, if, in their opinion, such stopping up or obstruction
would prejudice the interests of their area; so the Council also has duties and
powers relating to the trunk roads.

6.
The Highways Act does not define ‘interests’, but Sections 2 and 4 of the
Local Government Act 2000 empower the Council to do anything they consider
likely to promote or improve the sustainable development and economic, social
or environmental well-being of their area, so these should be deemed legitimate
‘interests’ for the purposes of the Highways Act.

7.
The Council has discretion whether to institute proceedings under Section
130 of the Highways Act 1980 and as to the form of proceedings they may think
proper to bring, provided they do so in accordance with the policy and objectives
of the Act. They have less discretion concerning obstructions about which they

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receive representations from a town or community council in their area, as in
such cases, they have no alternative but to take proceedings against those
obstructions unless satisfied that the representations are incorrect.

8.
Another aspect which fetters their discretion is that the Disability
Discrimination Acts 1995 and 2005 require them to adopt a pro-active approach
to meeting the needs of the disabled. So, the Council needs to have due regard
that obstructions which may be tolerable by the able-bodied may be intolerable to
disabled people, and we have an increasingly aging population who are more
susceptible to trips and falls than younger people, and suffer greater injuries in
the event of such trips and falls.

9.
Section 130 of the Highways Act 1980 does not itself provide any specific
means of enforcement against obstruction, but Part IX of the Act contains several
provisions the Council may call upon.

10.
In particular, Section 137 makes it an offence, punishable on conviction by
a fine, for anyone to wilfully obstruct a highway without lawful authority or excuse.

11.
Section 148 of the Highways Act 1980 makes it an offence, punishable by
a fine, for any person, without lawful authority or excuse, to deposit anything
whatsoever on a highway to the interruption of any user of the highway.

12.
Section 149 of the Highways Act 1980 provides that, if anything is so
deposited on a highway as to constitute a nuisance, the Council may by notice
require the person who deposited it there to remove it forthwith; and, if that
person fails to comply with the notice, the authority may make a complaint to a
magistrates court for a removal and disposal order.

13.
Much of Section 28 of the Town Police Clauses Act 1847 remains in force
and lists some specific offences the Council may cite in proceedings.

14.
If the Council has reasonable grounds for considering that anything
unlawfully deposited on a highway constitutes a danger to highway users
(including a danger caused by obstructing the view) and ought to be removed
without the delay of giving notice or obtaining a removal and disposal order, they
may remove it forthwith; and recover from the person by whom it was deposited
any expenses reasonably incurred by them in so doing, or make a complaint to a
magistrates court for a disposal order.

15.
Under Section 30 of the Dyfed Act 1987, if the Council considers that an
awning over a footway is dangerous or inconvenient to the public, they may, by
notice require the owner or occupier of the premises to which the awning is
appurtenant to carry out such work as may be necessary to remove the danger
or inconvenience.

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16.
Section 150 of the Highways Act 1980 requires the Council to remove any
obstruction of any highway in their jurisdiction, and, if they fail to do so, a
magistrates' court may, on a complaint made by any person, by order require
them to remove it within such period as the court considers reasonable having
regard to the circumstances of the case. Section 143 empowers the Council to
remove unlawful structures from highways.

17.
Section 66 of the Highways Act 1980 makes it the duty of the Council to
provide in or by the side of a highway maintainable at the public expense by
them which consists of or comprises a made-up carriageway, a sufficient footway
as part of the highway in any case where they consider it necessary or desirable
for the safety or accommodation of pedestrians.

18.
Under Section 108 of the Transport Act 2000, the Council has a duty to
develop policies for promotion and encouragement of safe, integrated, efficient
and economic transport facilities and services to, from and within their area and
carry out their functions so as to implement those functions. The facilities and
services referred to are specifically defined as being such as are required to
meet the needs of persons living or working in the authority’s area, or visiting or
travelling through that area, including, in particular, facilities and services for
pedestrians.

The Common Law Position

19.
In addition to the statutory provisions, the Council has common law duties
and powers to prevent and abate highway obstructions: these are preserved by
Section 333 of the Highways Act 1980.

20.
At common law, obstruction of a highway without express statutory
authority is a public nuisance and an indictable offence, punishable by a fine or
imprisonment or both.

21.
Not every physical obstruction of the highway will constitute a nuisance
under common law, depending on the circumstances: different considerations
apply depending on which type of interference is alleged.

22.
A permanent obstruction erected in a highway without lawful authority or
excuse is necessarily wrongful and constitutes a public nuisance at common law
as it operates as a withdrawal of part of the highway from the public.

23.
A temporary obstruction may or may not constitute a nuisance, according
to the circumstances of the case: generally, such an obstruction is wrongful and
constitutes a nuisance unless negligible in size, quantity and time, authorised by
statute, or occasioned in a reasonable and lawful use of the highway

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24.
A private individual can maintain an action for wrongful obstruction, but
must establish that he / she has suffered some particular, direct and substantial
loss or injury beyond what is suffered by other members of the public affected by
the nuisance. However, local authorities can, by virtue of Section 222 of the
Local Government Act 1972, bring proceedings without such proof and this
facility is reinforced by Subsection 130 (5) of the Highways Act 1980.

25.
The common law of nuisance depends upon the balancing of competing
interests and assessing whether one of those interests is unreasonably
interfering with the other: in highway cases, the issue is whether there is an
unreasonable interference with the lawful rights of the public to pass and repass
and to have access to the highway.

26.
So far as a temporary obstruction is concerned a plaintiff is not likely to
succeed if the obstruction is reasonable in quantum and duration; and, it may be
that, in deciding what is deemed reasonable, greater latitude would be allowed
the adjoining owner by the courts than a person who is simply a highway user.

27.
It also needs to be borne in mind that a highway may be dedicated subject
to the existence of an obstruction. Furthermore, what may appear to be highway
may be private forecourt as sometimes the two are indistinguishable in situ.

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Managing Obstructions

28.
The foregoing treatise of statutory and common law provisions show that
this is a complex area and the law accepts that some latitude is tolerable. Some
obstructions are so commonly occurring and reasonably necessary as to merit
special provisions for authorising them by statute. These are considered below.

Highway Works

29.
The Highways Act 1980 imposes a duty on all highway authorities to
maintain all highways which are highways maintainable at the public expense for
which they are the highway authority and defines the word ‘maintain’ as including
repair.

30.
It also empowers such authorities to carry out works of alteration or
improvement of their highways and provide footways and lighting, and such
raised paving, pillars, walls, rails or fences as they consider necessary to
safeguard persons using the highway.

31.
Also, the Road Traffic Regulation Act 1984 empowers them to erect traffic
signs and install bollards and other obstructions in their highways to regulate the
activities of traffic.

32.
In exercising these duties and powers of maintenance, repair, alteration,
improvement and regulation, temporary or permanent obstructions may be
created, so the Council follows codes of practice to remain within the law and
minimise any danger and disruption such obstructions may cause.

Utility Works

33.
Part III of the New Roads and Street Works Act 1991 governs the exercise
of the public utilities’ statutory powers to carry out works and install and maintain
apparatus in, over, under, and across highways.

34.
All such works which involve breaking open a street are under the same
field of control: persons other than public utilities may be granted licences by the
street authority to break open the street but must follow the same procedures as
public utilities acting within their own specific statutory powers.

35.
The procedures entail the undertaker or licensee notifying the street
authority in advance of the works so that all necessary consultations may be
carried out.

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36.
Section 59 of that Act imposes a duty on the street authority to coordinate
such works with the object of minimising disruption of the highway and Section
60 imposes a corresponding duty on the undertakers of such works to cooperate
in this aim with the street authority.

37.
Emergency works, defined by the Act as works to abate circumstances
that are believed to be likely to cause danger to persons or property, are exempt
from the prior notification procedure, but the undertaker remains subject to the
requirements to cooperate with the highway authority in minimising disruption of
the highway.

Building Works

38.
The law also recognises the needs of property owners to occasionally
obstruct highways in the process of carrying out building or repair work on their
property.

39.
Sections 139 and 140 of the Highways Act 1980 provide means for control
and removal of builders’ skips. It is unlawful for any builder’s skip to be deposited
on a highway without the permission of the highway authority, and the permission
may be granted subject to such conditions as the authority sees fit. The fee that
the Council charges for administering such applications is currently £25.00 per
month.

40.
Section 169 of the Act makes it an offence for any person, in connection
with building or demolition operations or the alteration, repair, maintenance or
cleaning of any building, to erect or retain on or over a highway any scaffolding or
other structure which obstructs the highway without a licence from the highway
authority. The licence may contain such terms as the authority sees fit. It is an
offence to erect or retain scaffolding or a structure on or over the highway in
contravention of those terms. The fee that the Council charges for administering
such applications is currently £50.00 per month.

41.
Section 172 requires any person proposing to erect or take down a
building in a street or alter or repair the outside of such a building, to notify the
Council before starting the works and to erect a close boarded hoarding or fence
to the Council’s satisfaction so as to separate the building from the street unless
the Council consider it unnecessary; and, if the Council so require, to make and
maintain for such time as the Council require, a convenient covered platform and
handrail to serve as a footway for pedestrians outside the hoarding or fence; and
sufficiently light the hoarding or fence and any such platform and handrail during
the hours of darkness. The fee that the Council charges for the licence/permit for
the placing of the hoarding, fence, platform, handrail and/or lighting in the
highway is £30 per month.

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42.
Section 171 enables the authority to give consent for the temporary
deposit of building materials, rubbish or other objects in the street or the making
of a temporary excavation in it, subject to such conditions as it sees fit; and to
impose directions as to erection and maintenance of temporary traffic signs,
signals, etc.

Markets and Fairs and Street Trading

43.
The Council honours customs and traditions developed by former local
authorities of the area, by licensing markets and fairs held on various main
streets in the county.

44.
The Local Government (Miscellaneous Provisions) Act 1982 permits a
council to designate footways in its area on which street trading is controlled by
express or general consent or prohibited, but Ceredigion County Council has not
adopted these provisions.

Public Amenities

45.
Part VIIA of the Highways Act 1980 enables local authorities to carry out
works and place objects or structures on, in or over footways for a variety of
amenity and other purposes, subject to meeting certain conditions; and to grant
other persons permission to do so also. These are discussed in greater detail
from paragraph 61 onwards.

46.
This provision of the Act makes it clear that Parliament recognises that
some obstructions or encroachments by business people in front of their shops
and even elsewhere, to display goods, to advertise or to provide litter bins, and
open air cafes with tables and chairs, etc., can be beneficial public amenities,
provided they are properly licensed by the local authority.

Highway Inspection

47.
The law governing the liability of highway authorities provides a special
defence against actions being brought against them for breach of their statutory
duty of highway maintenance, namely Section 58 of the Highways Act 1980, if
they can prove that they had taken such care as in all the circumstances was
reasonably required to ensure the part of the highway to which the action relates
was not dangerous to traffic.

48.
Meeting this burden of proof involves the authority in undertaking
inspections of all highways in its jurisdiction at frequencies depending on the
character of the highway and the traffic which can reasonably be expected to use

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them; and taking appropriate action in response to defects and encroachments
they discover in the course of those inspections.

49.
The Council’s Code of Practice for Inspection of Roads says –

Highway maintenance also comprises regulation and enforcement of activities on
or affecting the highways. The Inspection process should be aware of the
following and records kept of any interference with free flow of pedestrian or
vehicular traffic:

1.  Encroachment on the highway
2.  Illegal and unauthorised signs
3.  Licensing and inspecting skips
4.  Licensing and inspecting scaffolding
5.  Licensing temporary closures
6.  Construction of vehicle crossings

Any form of encroachment on to a highway should be reported as a matter of
urgency.

50.
Persistent inaction against an encroachment could lead to a longer-term
difficulty in securing its abatement, as the inaction could be misconstrued that the
way was dedicated subject to such an impediment. This could result in both the
public and the highway authority being deprived of their common and statutory
rights in relation to that portion of highway, and failure of the highway authority to
secure its abatement may be regarded as a breach of statutory duty. So, in the
Council’s Code of Practice, the word ‘encroachment’ is meant in the sense of any
object unlawfully placed in a highway which by occupying that portion of highway
prevents the public from using it as highway.

51.
The recently published revised national code of practice for highway
inspections, Well Maintained Highways (http:/www.roadscodes.org) says –

Securing continuous improvement in the safety and serviceability of footways, in
particular network integrity, will be a necessary component for encouraging
walking as an alternative to the car, particularly for journeys of up to three miles
in urban areas. It will be important for maintenance strategy positively to address
this.

It will also be important in determining priorities for footway maintenance to
ensure that opportunities are taken to aid social inclusion, particularly improving
accessibility for older and disabled people and also the use of prams and
pushchairs.

52.
An encroachment may cause a pedestrian to step off a footway into a
carriageway into the path of a vehicle and in extreme cases may thereby cause

8

death or serious injury. Highway risk and liability claims, the UK Roads Board’s
Practical Guide to Appendix C of the UK Code of Practice Well Maintained
Highways, says that actions of corporate manslaughter against Highway
Authorities will be considered in accordance with The Road Death Investigation
Manual Version 2, published by the Association of Chief Police Officers, viz.,
When a collision has occurred and highway involvement is alleged then the
highway authority should be able to show that it took reasonable measures to
ensure that the safety of the road user was not compromised. It sets out the
following questions that such an investigation would need to answer –

-  Were the policies, procedures and practices developed by the
highway authority reasonable and well considered, when taking into
account statutory duties, powers, and national and local best
practice?

-  Were the policies, procedures and practices developed by the
highway authority consistently implemented?

-  Did the highway authority act reasonably in response to all of the
pertinent information it had available?

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Policy Development

Enforcement Policy

53.
Having regard to the requirements of the law, it was the departmental
strategy of Ceredigion County Council’s highway predecessor, Dyfed County
Council, to abate, to the best of its ability and by the most expedient and least
expensive means, every unlawful highway obstruction brought to its attention.

54.
Enforcement was effected by seeking in the first instance to abate the
obstruction amicably, by persuading the offender to remove it. Where this failed,
stronger measures were taken, usually involving removal of the obstruction by
the organisation’s workforce to one of its depots and recovering the expenses of
so doing from the offender as a civil debt. In many instances, being informed of
that prospect was sufficient to persuade the offender to remove the obstruction.

55.
The borough and district councils of Dyfed, including Ceredigion District
Council, were agent highways authorities to Dyfed County Council and therefore
had dispensation to exercise Part VIIA of the Highways Act 1980 in relation to
amenities they wished to provide on highways in their jurisdiction.

56.
Additionally, they expressed an interest in exercising the provision of
granting permissions for others to do likewise, where it was deemed expedient
and economic.

57.
On the creation of Ceredigion County Council, its Highways, Property and
Works Department was directed to maintain consistency with the highway
policies of Dyfed County Council and Ceredigion District Council unless and until
directed otherwise.

58.
Consequently, the systems established for highway inspection, for
licensing and inspection of skips and scaffolding, and for the management of
public utilities works, are the same as existed under Dyfed County Council and
Ceredigion District Council, but combined in a unitary authority structure.

Permission under Part VIIA of the Highways Act 1980

59.
Consideration has also been given to granting permissions under Part
VIIA of the Highways Act 1980, but requires policy guidance to enable it to
progress.

60.
Part VIIA of the Highways Act 1980 empowers the council, subject to
certain provisos being met, to grant permission to any person to –

 carry out works on, in or over a footway;

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  place objects or structures on, in or over a footway for the purposes of
enhancing its amenity or that of its immediate surroundings or of providing
a service to the public or a section of the public;

  maintain such works, objects or structures;

  provide, maintain and operate facilities for recreation or refreshment on a
footway; and / or

  use objects or structures on a footway for the purposes of production of an
income, providing a centre for advice or information, and/or advertising.

61.
The provisos include putting up notices in the street giving details of the
proposal and specifying the period during which representations may be made to
the Council regarding the proposals, serving copies of the notices on owner(s)
and occupier(s) of premises appearing to the Council to be likely to be affected
by the proposal, and, where necessary, consulting other authorities on the
proposal.

62.
The following table lists footway obstructions often seen in Ceredigion that
may be considered under these provisions.

Items
Justification
Goods displayed by shopkeepers on
Enhancing amenity of highway and / or
pavement in front of shops
immediate surroundings
Flower/shrub pots/troughs displayed on  Enhancing amenity of highway and / or
pavements
immediate surroundings
Access ramps to shops, offices, etc.
Enhancing amenity of highway and / or
immediate surroundings
Statues / sculptures
Enhancing amenity of highway and / or
immediate surroundings
Holiday and carnival decorations
Enhancing amenity of highway and / or
immediate surroundings
Tables / seating outside pubs / cafes /
Facilities for refreshment / deriving an
restaurants
income
Advertising boards and frames
Purpose of advertising / deriving an
income
Special events (charity collections and
Enhancing  amenity of highway /
associated stalls/objects)
deriving an income

63.
The fact that such items may be justified by reference to expressions used
in Part VIIA of the Act does not mean that they are automatically acceptable,
otherwise the law would not have provided for the permit system to be managed
by the local authority.

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64.
The Council has a duty under the Local Government Act 2000 to
encourage and promote the sustainable development and social, economic and
environmental well-being of its area, including social inclusion and sustainable
accessibility. Streetscene management is an essential component of this
function.

65.
The courts have increasingly accepted that some obstructions on
footways are acceptable, provided they remain subordinate to the primary
purpose for which highways exist.

66.
Free flow and safety of traffic are the primary criteria by which such
obstructions are judged, so each obstruction for which permission is sought must
be subjected to a risk assessment as to the impact it is likely to have on the free
flow and safety of traffic, including pedestrian as well as vehicular traffic.

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Recommendations

Ratification of inherited operational policies

67.
In view of the foregoing, and as a starting point for the development of the
policies that are necessary to put a system in place for managing footway
obstructions under Part VIIA of the Highways Act 1980, it is recommended that
the Council confirms the two following operational policies inherited from its
predecessors –

(1)
It is the policy of the Council to ensure that all footway
obstructions are lawful and where they are not to take
steps to require the person responsible for the
obstruction to make the obstruction lawful under this
guidance or to remove it as appropriate.

(2)
With regard to any highway referred to in Part VIIA of the
Highways Act 1980 it is the policy of the Council to
consider granting permission upon the application by
any person, for that person to –

(a)
carry out works on, in or over that highway;

(b)
place objects or structures on, in or over that
highway for the purposes of enhancing its amenity
or that of its immediate surroundings or providing a
service to the public or a section of the public;

(c)
maintain such works, objects or structures;

(d)
provide, maintain and operate facilities for
recreation or refreshment on that highway; and / or

(e)
use objects or structures on that highway for
the purposes of production of an income, providing
information or advice, and / or advertising

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Safeguarding standard minimum widths

68.
No obstruction should be granted which would force pedestrians to
deviate off a footway on to an adjoining carriageway. A sufficient width needs to
be preserved free of obstruction between the permitted obstruction and the
carriageway. Equally, where an obstruction is granted close to the carriageway
with space for pedestrians to pass behind it rather than in front, the preserved
width behind the obstruction needs to be sufficient to enable pedestrians to pass
with ease. In considering the widths necessary to satisfy these requirements, the
proximity of other obstructions must also to be taken into account, such as traffic
signs, pedestrian railings, lamp-posts, bus-shelters, litter-bins, trees, planters,
etc, and sufficient width should be preserved between these and the permitted
obstruction to enable pedestrians to pass between them with ease.

69.
Published technical advice on what amounts to sufficient width is complex
and often confusing. This is because central government advice is necessarily
broad. For example, advice relating to ‘urban areas’ may be construed in relation
to small rural market towns, villages and more modest settlements as well as to
major cities and their surrounding conurbations, and advice relating to ‘rural
areas’ may be construed as applying to low-populated upland areas as well as
more highly-populated lowland ones. Such universalities tend towards
standardisation which is often considered inappropriate having regard to the
character of a particular locality and the needs of its traffic, so it has been a long-
held principle of highway law and practice that local highway authorities may
adopt their own standards in relation to highways that are highways maintainable
at public expense by them.

70.
During the incumbency of Dyfed County Council and Ceredigion District
Council, considerable operational experience was gained in safeguarding
sufficient widths from obstructions proposed by non-highway authorities under
statutory provisions other than Part VIIA of the Highways Act 1980, such as
telephone kiosks, pillar boxes, bus shelters, public benches and notice boards,
by interpreting government advice sensitively and sensibly in relation the
character of the locality and the needs of its traffic.

71.
None of those installations have given rise to complaint, so a table of
standard minimum widths has been developed from that experience, which the
present Council is recommended to adopt for management of footway
obstructions under Part VIIA of the Highways Act 1980 in the interests of
consistency. These widths have withstood the test of time and accommodate all
the categories of disability set out in the most recently published government
advice on inclusive mobility, so are fully Disability Discrimination Act compliant.

72.
Since the creation of Ceredigion County Council, the community has
indicated through various public / stakeholder participation processes a wish that
‘urban’ and ‘suburban’ highway design standards should be avoided in ‘small

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settlements and rural areas’ wherever possible to safeguard ‘the character of
Ceredigion’s rural settlements and countryside’, so the table has been designed
to meet this requirement.

73.
It is therefore recommended that the Council adopts the following policy -





(3)
It is the policy of the Council that the minimum width of
footway to be preserved from obstruction when granting
permission under Part VIIA of the Highways Act 1980 shall
be determined by the Director of Highways, Property and
Works according to the following guidance:

Within the

Main Towns
All Other
and Larger
Areas
Settlements
Footways in general
1800 mm
1600 mm
Footways where close
2000 mm
1800 mm
proximity of adjoining
vehicular traffic is
intimidating to pedestrians or
where frequent high volumes
of pedestrians merits extra
width
Footways where walking-
3000 mm
2400 mm
about and looking-around
make major contributions to
the shopping, leisure or
tourist experience

NB. For ‘Main Towns and Larger Settlements’ see
Settlement Proposals Map of the Ceredigion Unitary
Development Plan Proposed Modifications Version
published on the internet at
http://www.ceredigion.gov.uk/media/pdf/8/5/09_UDP_PM_I
ndex_Proposals_Map.pdf
and detailed Settlement Maps and Statements at
http://www.ceredigion.gov.uk/index.cfm?articleid=3493



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N.B. In safeguarding the desire lines of pedestrian traffic movement it is essential
to bear in mind that prams and wheelchairs are not as manoeuvrable as an able-
bodied  person,  so  the  geometric  paths  of  such  vehicles  must  be  taken  into
account. Their paths when negotiating turns are wider than when travelling in  a
straight  line,  so,  where  a  desire  line  is  curved  to  negotiate  around  objects,  the
minimum safeguarded width in the curve will need to be increased accordingly.

74.
There may be cases where the lack of available width may be overcome
by an applicant proposing a widening of the footway by narrowing the adjoining
carriageway by agreement with the Council under Section 278 of the Highways
Act 1980. The design and construction of such works would normally be
undertaken by the Council at the applicant’s expense. In exceptional cases, the
Council may allow the applicant to employ his own designer and contractor to
undertake these respective tasks to the Council’s satisfaction. In all cases, the
applicant would be required to pay the Council’s legal and technical fees for
administering the agreement.

Avoidance of fettering the Council’s powers

75.
So that the Council does not fetter its ability to fulfil its statutory duties in
relation to an unexpected occurrence during the currency of the permission, it is
recommended that the Council adopts the following policy –

(4)
All permissions shall be subject to a condition requiring
the licensee to remove all or any of the permitted
obstructions on request of the Council or any statutory
undertaker or public utility within such time as prescribed
in the request.

76.
In order that the Council is not impeded from carrying out highway or
traffic management works necessitated by changing patterns of development and
traffic it is recommended that the Council adopts the following policy –

(5)
All permissions shall be limited to a maximum of one

calendar year from the date on which the permission was
granted.

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Encouraging responsible citizenship

77.
In order to encourage successful applicants to adopt responsible attitudes
towards the utility to them of the Council operating Part VIIA of the Highways Act
1980 for their benefit, it is recommended the Council adopts the following policy –

(6)
Complaints of clutter, litter, danger or nuisance arising
from the presence or use of the object(s) shall be a
determining factor in the consideration by the Council of
any application for renewal of that permission.

78.
In order that the granting of permission should not circumvent provisions
adopted by the local community safety partnership, it is recommended that the
Council adopts the following policy –

(7)
No permission granted under Part VIIA of the Highways
Act 1980 shall grant or be deemed to grant permission for
sale or consumption of intoxicating liquor on a footway
which is or lies within a designated public place within
the meaning of Section 13 of the Criminal Justice and
Police Act 2001.

Minimising clutter, litter, danger and nuisance

79.
As footways should not be obstructed for any longer than is absolutely
necessary, it is recommended that the Council adopts the following policy –

(8)
All permitted movable objects shall be removed from the
footway by the daily end time specified in the permission
and shall not be replaced on the footway until the daily
start time specified in the permission.

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80.
In order that goods, parasols, tables, chairs, advertisements or other
movable objects permitted to be placed on footways should not endanger users
of them or passing pedestrian traffic or offend visual amenities or be susceptible
to being blown about by the wind, it is recommended that the Council adopts the
following policy –

(9)
All permitted tables, parasols, chairs, advertisements and
other moveable objects shall be designed as to be safe
and fit for purpose so as not to endanger users of them
or passing pedestrian traffic or offend the visual
amenities of the street, and shall be fixed or weighted as
to prevent them from being blown by the wind from their
permitted locations.

Integration with Town and Country Planning

81.
So that all objects permitted to be erected or placed on a footway have
any requisite planning permission, listed building consent, conservation area
consent and / or advertisement consent under the Town and Country Planning
Act 1990, it is recommended that the Council adopts the following policy –

(10)
Breach of planning control in relation to any object
placed on a footway in pursuance of a permit granted
under Part VIIA of the Highways Act 1980 will invalidate
the permit (a permit under Part VIIA of the Highways Act
1980 does not constitute a planning permission, listed
building consent, conservation area consent or
advertisement consent under Planning legislation).

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Fees and public liability insurance

82.
In order that applicants reimburse a reasonable element of the cost to the
Council of administering their applications under Part VIIA of the Highways Act
1980 it is recommended that the Council adopts the following policy –

(11)
Each applicant shall be charged a fee for the processing
of the application. The fee shall be £25.00 per square
metre of footway, rounded up to the nearest £25.00
increment. No application shall be processed unless
accompanied by a cheque to the correct amount made
out to ‘Ceredigion County Council’. No part of the fee
shall be refundable in the event of the application to
which it relates being refused by the Council or in the
event of the Council requiring the licensee to remove all
or any of the permitted obstructions within the currency
of the permission to which it relates.

83.
To ensure that an applicant has and maintains adequate public liability
insurance for the duration of the permission it is recommended that the Council
adopts the following policy –

(12)
Each applicant shall indemnify the Council against all
actions, proceedings, claims, demands and liability which
may at any time be taken, made or incurred in
consequence of the presence or use of the object(s) to
which the permission relates and for this purpose shall
take out at his / her own expense a policy of insurance
approved by the Council to such value per event as shall
be determined by the Director of Highways, Property and
Works and shall produce to the Council on request
current receipts for premium payments and related
confirmations of renewal of the policy.

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Obtaining other statutory consents

84.
The Council is barred from granting permission under Part VIIA of the
Highways Act 1980 in relation to any footway for which they are not the highway
authority (e.g., trunk road footways) without obtaining the consent of that
footway’s highway authority. It is also barred from granting permission under Part
VIIA of the Highways Act 1980 in certain case without the consent of the
frontager. Seeking such consents will entail additional expense for the Council. It
is accordingly recommended that the Council adopts the following policy –

(13)
No statutory consent shall be sought by the Council from
any other highway authority or a frontager in respect of
any application under Part VIIA of the Highways Act 1980
unless and until the Director of Highways, Property and
Works is satisfied that the respective proposal satisfies
all other Council requirements and that the applicant will
reimburse all the costs and expenses the Council incurs
in seeking those consents, even if seeking those
consents proves abortive.

Transparency, accountability and fairness

85.
To ensure transparency, accountability and fairness of the system, it is
recommended that the Council adopts the following policy –

(14)   All permissions granted under Part VIIA of the Highways
Act 1980 in Ceredigion shall be granted subject to such
conditions as may be deemed necessary by the Director
of Highways, Property and Works of the Council.

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86.
To ensure that the council’s amenity uses of footways shall be subject to
the same considerations as apply to applicants under Part VIIA of the Highways
Act 1980, it is recommended that the Council adopts the following policy –

(15)   It shall be the practice of every division of the Council to
consult with the Engineering Division of the Highways,
Property and Works Department of the Council before
exercising the Council’s powers under Section 115B
(Provision, etc., of services and amenities by councils) or
Section 115C (Provision of recreation and refreshment
facilities by councils) of Part VIIA of the Highways Act
1980.

Streetscene Management

87.
It may be necessary to refuse applications for permission under Part VIIA
of the Highways Act 1980 in respect of advertising boards where they would
unacceptably contribute to streetscene clutter. Where these relate to premises in
any of the main towns of the county (i.e., Aberystwyth, Tregaron, Lampeter,
Llandysul, Cardigan or Aberaeron) consideration will be given by the Council’s
Streetscene Management to the provision of display boards by the Council upon
which such places may be advertised in map form for public information
purposes.

Objects on Verges

88.
Objects on verges such as advertisement signs and display goods which
are considered to obstruct or endanger users of the highway will be treated as
unauthorised obstructions or encroachments and action taken against those that
are brought to the Council’s attention. Part VIIA of the Highways Act 1980 does
not allow the Council to grant permission for these because verges are not
footways within the meaning of the Act.

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Environmental Considerations

89.
The Council reserves the right to –

(a)
refuse to grant a permission;

(b)
withdraw a permission; or

(c)
refuse to renew a permission

under Part VIIA of the Highways Act 1980 in respect of any object(s) it considers
likely to create noise disturbance by attracting public congregation or public order
or management control problems.

Placing of Refuse on Footways for Collection

90.
Many footways are used for temporary accommodation of refuse awaiting
collection. It is the responsibility of the person depositing the refuse to ensure it
does not unreasonably impede or endanger pedestrians, or become a nuisance
or public health hazard. Refuse awaiting collection is not an appropriate subject
for Part VIIA of the Highways Act 1980. The Council employs the Environmental
Protection Act 1990 for the management of such deposits.

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