Rights of way enforcement policy

There are several possible courses of action available to us:

Advice may be given when it is determined that the infringement is of a minor nature, and there is an agreement that the owner or occupier involved will take the required corrective action.

The owner or occupier will be requested to take appropriate remedial action.

A formal notice may be served, dependant on the statutory/common law provisions used.

If an offence has been committed (which will be decided on the facts) and where a request to take remedial action has failed, provided it is deemed that there is sufficient evidence to serve an enforcement notice.

Such notice will include provision for the council to take direct action to remove obstructions or nuisances or to deal with the appropriate restoration of paths and to recover its costs as provided by the relevant legislation.

In some circumstances the council will prosecute if it believes it to be in the public interest to do so and this may be undertaken in tandem with the service of notices (as above).

Prosecutions are an important part of our enforcement process. The council will prosecute to provide a deterrent against offences being committed, but such action will only be taken when other attempts to secure compliance have failed.

The decision to prosecute will be taken in accordance with legal advice regarding the facts of the case, the evidence available and with regard to whether there is sufficient admissible evidence to obtain a conviction.

Each case is considered on its merits. The appropriate authorised officer(s) of the HT Service will decide if the facts fall into one of the categories listed under the “The Policy” and also take into account additional factors which reflect the Code of Practice for the Crown Prosecution Service including “the full code test”.

At all stages when considering enforcement action, the Council will take full consideration of all aspects of the Human Rights Act 1998.

Prosecution will be considered when:

• there is a significant risk to public safety (which may or may not be possible for the council to abate using direct powers)
• there is a flagrant breach of the law, or if notice has been given that legal proceedings will be considered for future breaches
• there has been a failure to heed advice or instructions or take corrective action, or act on an enforcement notice
• there is a history of similar infringements
• if the prosecution is in the public interest
• sufficient evidence to provide a realistic prospect of conviction

There are additional considerations for prosecution if:

• the conviction is likely to result in a fine
• we're aware of the previous behaviour and/or record of the defendant
• if the offence is widespread

Each case will be subjected to an ongoing process of review to ensure the level of enforcement action continues to be appropriate. Once the decision to prosecute has been made, enforcement action will be commenced without unnecessary delay.