Rua Reidh road: Highland Council's abandonment of its duty to ensure a road remains clear of obstructions

The request was successful.

Dear Highland Council,

Under section 59 of the Roads (Scotland) Act nothing may be placed or deposited in a road so as to cause an obstruction except with the roads authority’s consent in writing and in accordance with any reasonable conditions which they think fit to attach to the consent. Anyone who contravenes that provision commits an offence.

Highland Council has confirmed to me that it issued a notice under section 59 (3) of the Roads (Scotland) Act requiring the removal of obstructions at Rua Reidh lighthouse i.e two gates blocking the road.

The gates were not removed after the notice was served.

Failure to abide by such a notice 'forthwith' is a further and separate offence under section 59.

Section 59 allows the council to carry out the work outlined in the notice if it is not carried out by the owner of the obstruction.

The Council has told me it has 'removed' the gates on eight occasions.

From the information you hold, what has that cost the Council?

Section 59(4) allows the Council to recover such costs as are reasonably incurred in the removal of such an obstruction.

Has the council claimed such expenses?

If so, what amount has the council claimed?

Has the council received payment for such expenses as it has claimed?

If not, what has the council done to enforce the claim in order to protect the public purse?

If the council has not reclaimed these monies, why not?

In failing to follow subsection (5) of section 59 and the read-across to subsection (7), (8) and (9) of section 56 the Council has failed to remove the gates as envisaged by the legislation, which is that they be removed from site and offered back to the owners or sold as the case dictates. Instead the council has failed to remove the gates but has simply taken them off their hinges and left them and the posts in situ to remain as obstructions in the road. This failure to act as per the legislation has facilitated the illegal remounting of the gates, the continued obstruction of the road and serial offences under section 59.

From the information you hold, does the Council believe that the failure of the Council to properly follow the formal legal notice it issued to remove the obstructions in the first instance and the further 'removal' of the gates on at least seven further occasions, is a reasonable reaction to continuing and repeated offences under section 59?

From the information you hold has the Council considered that by following this ultra vires course of action it is encouraging and entrapping the miscreants into further and more illegality by not itself carrying out the terms of its own notice and not doing so on multiple occasions, rather than carrying out its duties properly and completely in the first place?

The Council says it has now stopped 'removing' the gates because it is futile. The gates remain on their posts and are an obvious obstruction in the verge at all times, if not at all times across the metalled surface of the road.

From the information you hold what does the Council consider to be the legal basis, if any, of its failure to follow its own notice under section 59 and on what basis may such a notice be abandoned or ignored or withdrawn, as the case may be here, and on what legal basis - legislative or case law - is the Council depending upon when it claims 'futility' as a means of abandoning action under a Section 59 notice without recourse to the courts as set out in the legislation?

Does the Council consider that having issued a formal notice under section 59, and given the continued offences of re-erecting this obstruction and the failure of both the miscreants and the council to carry out the work in that notice, and having expended considerable public monies in 'removing' the obstructions, that 'futility' is a proper excuse, within its discretion, for inaction in the face of multiple offences when the Council has proper recourse to the courts, and when it has had that facility all along and failed to utilise it?

Does the Council consider that, having recognised a road is illegally obstructed and having issued a notice under section 59 to have obstructions removed from the road, that it is duty bound thereafter to follow through and ensure the terms of the notice are carried out and, if the obstruction is not removed or is continually re-erected, that legal action to ensure the obstruction is removed must follow as soon as possible to ensure the public's continuing rights of passage along that road?

In the face of continuing illegal obstruction of the road at Rua Reid has the Council initiated court proceedings to ensure the road to Rua Reidh is not obstructed by anything placed or deposited in that road? If not, why not?

Does the Council agree with me that inaction now, and earlier, facilitates offences and that is not a role a council should take?

If the Council's eight-times-failure properly to remove the obstruction as envisaged by section 59 is not reasonable then the costs of such failures cannot be recovered from offenders and the Council has wasted public monies.

Does the Council consider it has a duty to protect the public purse?

Does the Council consider it has a duty to ensure that roads are not obstructed?

Yours faithfully,

Guy Kerry

Highland Council

Case Ref: HC0226-3084  
Dear Guy Kerry, 
We acknowledge receipt of your request for information under the
FOI legislation received on 11/02/2018.
Subject: 
Roads Information
Request Detail:
Dear Highland Council, Under section 59 of the Roads (Scotland) Act
nothing may be placed or deposited in a road so as to cause an obstruction
except with the roads authority?s consent in writing and in accordance
with any reasonable conditions which they think fit to attach to the
consent. Anyone who contravenes that provision commits an offence.
Highland Council has confirmed to me that it issued a notice under section
59 (3) of the Roads (Scotland) Act requiring the removal of obstructions
at Rua Reidh lighthouse i.e two gates blocking the road. The gates were
not removed after the notice was served. Failure to abide by such a notice
'forthwith' is a further and separate offence under section 59. Section 59
allows the council to carry out the work outlined in the notice if it is
not carried out by the owner of the obstruction. The Council has told me
it has 'removed' the gates on eight occasions. From the information you
hold, what has that cost the Council? Section 59(4) allows the Council to
recover such costs as are reasonably incurred in the removal of such an
obstruction. Has the council claimed such expenses? If so, what amount has
the council claimed? Has the council received payment for such expenses as
it has claimed? If not, what has the council done to enforce the claim in
order to protect the public purse? If the council has not reclaimed these
monies, why not? In failing to follow subsection (5) of section 59 and the
read-across to subsection (7), (8) and (9) of section 56 the Council has
failed to remove the gates as envisaged by the legislation, which is that
they be removed from site and offered back to the owners or sold as the
case dictates. Instead the council has failed to remove the gates but has
simply taken them off their hinges and left them and the posts in situ to
remain as obstructions in the road. This failure to act as per the
legislation has facilitated the illegal remounting of the gates, the
continued obstruction of the road and serial offences under section 59.
From the information you hold, does the Council believe that the failure
of the Council to properly follow the formal legal notice it issued to
remove the obstructions in the first instance and the further 'removal' of
the gates on at least seven further occasions, is a reasonable reaction to
continuing and repeated offences under section 59? From the information
you hold has the Council considered that by following this ultra vires
course of action it is encouraging and entrapping the miscreants into
further and more illegality by not itself carrying out the terms of its
own notice and not doing so on multiple occasions, rather than carrying
out its duties properly and completely in the first place? The Council
says it has now stopped 'removing' the gates because it is futile. The
gates remain on their posts and are an obvious obstruction in the verge at
all times, if not at all times across the metalled surface of the road.
From the information you hold what does the Council consider to be the
legal basis, if any, of its failure to follow its own notice under section
59 and on what basis may such a notice be abandoned or ignored or
withdrawn, as the case may be here, and on what legal basis - legislative
or case law - is the Council depending upon when it claims 'futility' as a
means of abandoning action under a Section 59 notice without recourse to
the courts as set out in the legislation? Does the Council consider that
having issued a formal notice under section 59, and given the continued
offences of re-erecting this obstruction and the failure of both the
miscreants and the council to carry out the work in that notice, and
having expended considerable public monies in 'removing' the obstructions,
that 'futility' is a proper excuse, within its discretion, for inaction in
the face of multiple offences when the Council has proper recourse to the
courts, and when it has had that facility all along and failed to utilise
it? Does the Council consider that, having recognised a road is illegally
obstructed and having issued a notice under section 59 to have
obstructions removed from the road, that it is duty bound thereafter to
follow through and ensure the terms of the notice are carried out and, if
the obstruction is not removed or is continually re-erected, that legal
action to ensure the obstruction is removed must follow as soon as
possible to ensure the public's continuing rights of passage along that
road? In the face of continuing illegal obstruction of the road at Rua
Reid has the Council initiated court proceedings to ensure the road to Rua
Reidh is not obstructed by anything placed or deposited in that road? If
not, why not? Does the Council agree with me that inaction now, and
earlier, facilitates offences and that is not a role a council should
take? If the Council's eight-times-failure properly to remove the
obstruction as envisaged by section 59 is not reasonable then the costs of
such failures cannot be recovered from offenders and the Council has
wasted public monies. Does the Council consider it has a duty to protect
the public purse? Does the Council consider it has a duty to ensure that
roads are not obstructed? Yours faithfully, Guy Kerry
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Dear Highland Council,

Please review your ultra vires decision not to answer my request ' Rua Reidh road: Highland Council's abandonment of its duty to ensure a road remains clear of obstructions' within the legal limit of 20 working days.

Yours faithfully,

Guy Kerry

Freedom of Information, Highland Council

Dear Mr Kerry,
I refer to your request for information below which, for the purposes of the legislation was received on 12th February 2018.

Having read through the contents the following parts have been considered as coming within the ambit of the Environmental Information (Scotland) Regulations 2004 (EIRs):

What has that cost the Council [to remove the gates]?
Has the council claimed such expenses?
If so, what amount has the council claimed?
Has the council received payment for such expenses as it has claimed?
If not, what has the council done to enforce the claim in order to protect the public purse?
If the council has not reclaimed these monies, why not?

I can confirm that the Council has invoiced the lighthouse owners for costs associated with removing the gates. However, the Council considers that the rest of the information that you have requested falls within the definition of personal data given in the Data Protection Act 1998 and that to publish the details of our dealings with the couple who own the lighthouse would be a breach of the first principle of data protection. This information is excepted from publication under Regulation 11(2) of the EIRs. The Council has considered the public interest surrounding the lighthouse road. There is clearly a public interest in ensuring that public money is not wasted and that people are held responsible for the work that their actions causes the Council. However, it is not thought that this public interest is sufficient for the Council to breach the privacy of the lighthouse owners by disclosing the details of the amount of money claimed or paid. The Council believes that providing this information would represent an unwarranted intrusion and, therefore, refuses to provide this information.

In relation to the rest of your request for information, the Council has previously outlined its position in relation to this road and I confirm that the Council's position has not changed.

If you are dissatisfied with the Council's actions with regard to the road, I would suggest that you write to complain to the Council's Chief Executive, outlining the reasons for your dissatisfaction. If you are subsequently dissatisfied with the response received, you will be able to take your complaint to the Scottish Public Services Ombudsman, who will be able to decide whether the Council has acted reasonably in this case or not.

In relation to your request for information, if you are dissatisfied with this response, under Regulation 16 of the EIRs, you have the right to request that the Highland Council reviews any aspect of how it has dealt with your request. This requirement for review should be put in writing to the Freedom of Information Officer, Chief Executive’s Office, Glenurquhart Road, Inverness IV3 5NX, within 40 working days of receipt of this letter. The request should include details of the information requested and the aspects of the Highland Council’s response which you are not satisfied with.

If you are subsequently dissatisfied with the outcome of the Council's review, you have the right to appeal to the Scottish Information Commissioner under Regulation 17 of the EIRs, within six months of receiving the Council's review response.

Yours sincerely,

Miles Watters

Miles Watters | Freedom of Information & Data Protection Manager |
Chief Executive's Office | The Highland Council | Glenurquhart Road | Inverness IV3 5NX |
Tel. 01463 702029 | Fax 01463 702830 | www.highland.gov.uk

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Freedom of Information, Highland Council

Dear Mr Kerry,
I refer to your email below.

As you are aware, the legislation refers to 20 working days. Therefore Saturdays, Sundays and certain public holidays cannot be included when calculating the deadline. A request received on a Saturday, Sunday or public holiday is treated as being received the next working day. Therefore, your email of 11th February 2018 is treated as if it were received on 12th and the deadline for that request is 12th March 2018.

This can be confirmed on the Scottish Information Commissioner's website. http://www.itspublicknowledge.info/YourR...

The Council has responded to your request today. If you are dissatisfied with that response you have the right to request a review.

Yours sincerely,

Miles Watters

Miles Watters | Freedom of Information & Data Protection Manager |
Chief Executive's Office | The Highland Council | Glenurquhart Road | Inverness IV3 5NX |
Tel. 01463 702029 | Fax 01463 702830 | www.highland.gov.uk

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