Rights of way enforcement policy

The aim of the Highways and Technical Service (HT Service) is to ensure that all the highways within the area of BC remain in a condition that is safe and easy for use by the public; to carry out practical works in order to maintain the highways; advise and negotiate and, where necessary, take direct enforcement action or prosecute individuals or organisations in breach of the law.

The HT Service provides information, education and advice to all those who use or wish to use the public rights of way network in Buckinghamshire. The HT Service also gives advice, practical assistance and guidance to help farmers and landowners comply with the law. This document sets out BC’s Rights of Way enforcement policy: its purpose; legal powers; the details of the policy; and how it should be interpreted and implemented. The enforcement policy is required to:

• clarify the circumstances in which BC’s enforcement powers, (primarily under the Highways Act1980 but also in consideration of all other enforcement powers available to BC) will be implemented;
• ensure that enforcement decisions are transparent; and
• ensure that enforcement procedure is consistent.

Enforcement action is a general term used within this document to cover the range of options, including negotiation and advice, direct action by the Council to remove obstructions and the decision to implement legal action up to and including prosecution where necessary.

Enforcement will be considered wherever appropriate powers exist to deal with actions or inactions that may lead to risks to the health and safety of the public or when highway rights are infringed.

There are four basic principles which underpin this policy:

Proportionality relates to the enforcement action to the seriousness of the contravention. Some incidents may have the potential to place the public's health and safety at risk, whilst others interfere with people's enjoyment, their rights and HT Service's ability to carry out its activities.Enforcement action will be proportionate to the risks posed and to the seriousness of any breach of the law.

Consistency is undertaking a similar approach in similar circumstances. This does not necessarily mean 'uniformity' of action.

When assessing a breach, officers will need to exercise their professional discretion by taking into account all the relevant factors of the case. Cases must be dealt with by their own merits, on a case-by-case analysis. Such relevant factors may include the:

• severity of the breach
• impact or potential impact on the public
• behaviours of those responsible for the breach
• history of previous breaches.

Transparency ensures that those against whom enforcement action is taken are aware of the legislative requirements and equally of the likely consequences of non-compliance.

Distinction will need to be made between statutory requirements and what is good practice or desirable, but not compulsory. Transparency should aid those being regulated in complying with statutory requirements and minimise the need for further or continued enforcement action. It also helps maintain public confidence in the ability of the HT Service to fulfil its statutory duties.

Where enforcement action is required, an explanation will be documented (in writing) rationalising why action is proportionate, necessary and legally required. Unless urgent action is required, an opportunity will be provided to discuss what is necessary to comply with the law.

Urgent action will be taken where the safety of the public is paramount due to the circumstances. The enforcement policy must not fetter the council’s ability to take immediate action where and when required.

Targeted is ensuring that enforcement action is directed primarily to where the risks or impact on the public is greatest.

Action will be focused on those directly responsible for the breach and who are best placed to control it. Prioritisation will be based on a number of factors, including assessment of:

• threat
• risk
• harm
• impact on the public