Legal Updates

Environmental – Gating Orders – Guidelines – Legislation Amendment

The Highways Act 1980 (“HA 1980”) has recently been amended by Section 2 of the Clean Neighbourhoods and Environment Act 2005 (“CNEA 2005”). The amendments mean that local authorities have been granted powers to erect, or allow permits to be granted to allow the erection of, physical barriers restricting public access to a highway.

These powers are known as "gating orders". There are a number of pieces of legislation which relate to gating orders:

§   Various provisions in the CNEA 2005 (England and Wales).

§   Gating orders regulations (England).

§   Gating orders regulations (Wales).

In addition to gating orders, Part II of the Countryside and Rights of Way Act 2000 (“CROWA 2000”) also contains provisions allowing for the closure of footpaths and bridleways. However, it should be noted that these provisions are more restrictive than the powers that are granted under the HA 1980 (as amended by CNEA 2005). More information is provided on the powers granted by the CROWA 2000 in the explanatory notes accompanying the legislation (Paragraph 74, Part II of the CROWA 2000).

It is also interesting to note that gating orders are typically implemented on minor public highways. In many cases gating orders are used where alleyways, passes and passages are associated with recurring high levels of crime or anti-social behaviour. When these alleyways, passes or passages adversely affect local residents or businesses, a gating order is likely to be made in the interests of public protection.

In this respect the Home Office has published a guide entitled: “Home Office: A Step-by-step guide to gating problem alleys - Section 2 of the Clean Neighbourhoods and Environment Act 2005”.

This guide outlines the steps that have to be adhered to in making an application for a gating order to be granted in respect of a particular public highway. It should be noted however that local authorities are not likely to grant a gating order unless it has received a number of complaints about a particular alleyway, pass or passage.

Nevertheless, the guide is intended to be of use to legal practitioners advising clients on how best to tackle crime or anti-social behaviour in alleyways, passes or passages which are situated near their property.

Furthermore, the guide helps to establish whether a gating order is appropriate in the circumstances. In the event that a gating order is deemed appropriate, the guide also provides information as to the best approach in making an application to the local authority. Although the guide aims to provide practical advice on the process surrounding gating orders, legal practitioners are likely to still need to refer to the provisions set out in the relevant legislation.

The guide includes the following:

§   Information valuable when deciding as to whether making an application for a gating order is an appropriate course of action in certain circumstances;

§   A list of stages that must be completed in order to obtain a gating order;

§   A number of case studies; and

§   A flowchart depicting how the process works in practice.

If you require further information please contact us at [email protected].

© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.