THE DECISION

The Facts are taken from the judgment of BRIAN SMEDLEY,J who said that Kent county council contended that the presence of the dogs amounted to an obstruction in as much as their presence instilled fear into those persons passing along the path and prevented them from enjoying free passage over all parts of it; that the protrusion of the dogs' heads over the footpath coupled with their behaviour amounted to a physical obstruction of the footpath.

The justices had found that Holland had been acting lawfully in the use of his property to exercise his dogs and that his actions were wilful.

On the question of whether there was an obstruction they found Kent County Council' contention difficult to reconcile with the wording of the statute. So did his Lordship.

The uncertainty of the test and the inconsistent results it would produce in the view of the justices mitigated against such an interpretation. His Lordship agreed with that finding.

The justices felt that to regard the creation of fear as amounting to an obstruction would be to stretch the meaning of the word too far and his Lordship agreed. Whether a particular situation amounted to an obstruction had to be a question of fact for the tribunal on the facts of each particular case.

The justices also applied the de minimis principle to the protrusion of the heads of the dogs over the fence. They found as a fact that the extent of the protrusion was unclear but that it extended to inches, if that.

Rejecting the argument of Kent County Council that the phrase "de minimis"

had to be applied not only to the extent of the protrusion but also to its effect, his Lordship said that the justices were entitled to find, and his Lordship agreed with the finding, that any protrusion was so minimal in time and degree that it could not be said to amount to a physical obstruction of the highway.

His Lordship concluded that if in the view of the local authority the use being made of Mr Holland's land amounted to a common law nuisance then it was open to them to consider taking steps, either civil or criminal, to put an end to it.

The offence of causing an obstruction under S.137 of the 1980 Act not having been made out the justices were right in their conclusion.

THE DECISION

Causing fear in pedestrians was not an obstruction of the highway for the purposes of section 137(1) of the Highways Act 1980.

The Queen's Bench Divisional Court so held when dismissing an appeal by way of case stated by Kent County Council from the dismissal by Gravesend Justices on October 10, 1995 of an information against Graham Holland that he wilfully obstructed the free passage along a footpath contrary to section 137(1) of the 1980 Act.

COMMENT

I doubt if I would ever describe Rottweilers as De-Minimus however these two rottweilers that put their heads over a fence and snarled and barked menacingly at walkers on a public footpath were not breaking the law.

Brute and Frankie would certainly have worried me, I recall on early turn having to cross a small footbridge across river at 0530 hours (in the dark) when the owner of an Alsatian exercised her dog, it may have been "OK", but I didn't think so.

The judgment was greeted with relief by the dogs' owners, Graham and Christine Holland, who described them as "lovely pets". But the Ramblers' Association said it was disappointed.

The case was "rather exceptional if not unique", said the two judges who dismissed an appeal by Kent County Council against the refusal of Gravesend magistrates to convict Mr Holland for wilfully obstructing free passage.

Classing the dogs as a physical obstruction when they jumped up at the boundary fence, rested their paws on top and protruded their jowls beyond the line of the fence would be "to stretch the meaning of the word too far", Lord Justice Schiemann said.

Among those alarmed by the seven-year-old rottweilers was Anne Waugh, the rights of way officer for Gravesham Borough Council, the court was told. She was too frightened to walk the whole length of the path, which was between 3ft and 4ft wide, and went back the way she had come after the dogs began barking furiously over the fence, which averaged 4ft in height. There were two other complaints.

The county council said it was disappointed. "We were representing not only ourselves but the users of the public right-of-way network."

Mrs Holland, who has three children, said: "It should never have gone this far and I hope this is the end of it. Hardly anyone uses the path; it is all overgrown. They are always under control and have never got out or bitten anyone." She said Brute and Frankie, named by a breeder, were pets, not vicious guard dogs.

"They are lovely dogs; they would lick you to death before they bit you. (Anyone care to try?)

"I have had them since they were six months old and they are beautiful with children. All dogs bark when people walk past their gate."

The judges ruled that the magistrates had been entitled to find that the protrusion of the dogs' heads was so minimal that it could not be said to be a physical obstruction. There were other steps the council could take, either civil or criminal, if it believed that there was a common nuisance.

The council, which looks after 4,262 miles of footpaths, said it was considering its next move. "We felt we needed clarity on the law," said a spokeswoman, adding that the path was popular because it enabled walkers to avoid a road.

John Trevelyan, deputy director of the Ramblers' Association, said it was important that walkers were free from intimidation.

"It is disappointing that this line of legal approach has been ruled out by the court but I note that the judge has said it might be better to take another legal approach based on nuisance rather than obstruction. We hope that Kent County Council will follow this advice."

LINKS

• "Internet Law Book Reviews" Rob Jerrard