Alleygating
From GPG
Contents |
Introduction
Alleygating is a term that is used to mean the blocking of alleys (known as ginnels, snickets, passages and walks and by many other local names in different parts of the country) by gates or other barriers.
Care must be taken to define the term when it is used, as it has meant different things over a relatively short period of time and it has no legally defined meaning.
Highway authorities have frequently come under pressure to close alleys in urban areas to address security problems (perceived or real) or to prevent the use of alleys themselves for crime or anti-social behaviour. Where alleys are purely private their closure has usually been achieved readily. Many authorities find themselves under pressure to close alleys where public rights existed, particularly alleys that run to the rear of domestic premises, as entry through the back of the house is one of the main means of access in domestic burglaries. Until recently, these authorities found that the powers available to them under the Highway Act 1980 did not enable them to close highways that were in use and were demonstrably needed by the public. In some cases the majority of the usage was to access property and some authorities unlawfully gated routes, providing keys to residents to get around the issue of access.
Recognising this difficulty the government provided powers in the Countryside and Rights of Way Act 2000 for authorities to close certain highways in certain circumstances. These powers are discussed below, in brief. They were augmented by newer powers contained in the Clean Neighbourhood and Environment Act 2005, which allows for the restriction of public access to alleys by "gating order". It is recommended that authorities seeking to limit access to rights of way consider the options open to them under both CRoW and the Clean Neighbourhood and Environment Act. It is also recommended that authorities develop and review policies on how they will deal with requests to close or restrict public access to rights of way.
The position pre the CRoW Act
The only powers available to permit the closure of highways were those contained in the Highways Act 1980, prior to amendment. For public paths, the authority could close a path by order under S118 of the Highways Act and for vehicular highways, application for an order had to be made to the Magistrates' Court under S116. In either case the statutory test contained in the relevant section had to be met, and did (and does) not permit consideration of matters such as crime-prevention, privacy, security of premises or the desire of residents to prevent the use of the highway for activities they considered to be anti-social.
CRoW Act powers – Special Orders for Crime Prevention
These powers came into effect in February 2003. The Act amends the Highways Act 1980 by inserting new sections 118B and 119B, which allow highway authorities to make orders to close or divert rights of way, including restricted byways, for the purposes of crime prevention. However, orders may only be made for rights of way that are within areas that have been designated as areas of high crime by the Secretary of State, and even when an area has been so designated, orders for individual rights of way must still meet the criteria within the legislation.
Applications for designation of areas as areas of high crime have been accepted in set phases and required the applicant authority (usually the highway authority, though in cases where the highway authority was not minded to apply, applications could be made by a district council) to make a detailed submission to demonstrate to the Secretary of State that the relevant area is sufficiently vulnerable to crime arising from the presence of public rights of way to justify the designation applied for. In order to be successful, applicant authorities have to demonstrate that there are rights of way in the area that can be shown to be the causes of a persistent crime problem and that realistic alternative options to tackle the crime problem had been properly evaluated, prior to the application being made. Additionally guidance indicates that areas subject to noise and disturbance from noise, anti-social behaviour and disturbance arising from that behaviour, fly-tipping, litter, dog fouling, and graffiti where there was no evidence of more serious crime (such as robbery, domestic burglary, vehicle theft or thefts from vehicles, arson, assault and drug taking or dealing) would be unlikely to meet the criteria for designation. The legislation does not therefore, provide a power for highway authorities to close or divert rights of way for many of the alleys that residents complain about since without designation of the area by the Secretary of State the power to make orders under sections 118B and 119B does not arise.
For those authorities that were successful in having areas designated and which then went on to consider making, or to make, orders other practical issues arose that have had to be addressed. Amongst these were the means of effectively blocking stopped up alleys so that the desired crime prevention was achieved whilst still allowing access for residents, the need to secure planning consent for the erection of the necessary structures, maintenance of the structures and provision of keys, the future maintenance of the surface of the alley, cleansing of the alley, rubbish collection, access for emergency or maintenance vehicles and the retention and recording of access rights to premises over the alley once highway rights were removed.
Powers under the Clean Neighbourhoods and Environment Act 2005
The Act amends the Highways Act 1980 by inserting new sections 129A to 129G containing the powers to make gating orders. The making of gating orders is also governed by the Highways Act 1980 (Gating Orders) (England) Regulations 2006. A gating order restricts, to the extent specified in the order the public right of way over a highway to which it relates. Gating orders are analogous to traffic regulation orders (though unlike a traffic regulation order it is not an offence to breach a gating order), are flexible and can be varied and revoked in a way that Special Orders for Crime Prevention as introduced by CRoW cannot.
Guidance on using powers under CRoW and the Clean Neighbourhoods and Environment Act 2005
Following the measures introduced by the Clean Neighbourhoods and Environment Act 2005 and also the case of R (on the application of Manchester City Council) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 3167 (Admin) it seems increasingly unlikely that authorities will seek to use their powers to make Special Orders for Crime Prevention except in circumstances were it is deemed expedient to permanently close or divert a right of way. Since gating orders can be made that will in effect remove public access, either at all times or for specified time periods, without the need to stop up the highway many of the problems produced by Special Orders for Crime Prevention, such as the need to make provision for the recording of private access rights over the alley, are avoided. Another attraction for authorities is that gating orders can be imposed, despite opposition without the need for a public local inquiry. However, that is not to say that gating orders are without difficulties, nor should they be made unless the criteria in the legislation is met.
As authorities will come under pressure to consider making gating orders and Special Orders for Crime Prevention it is important that they have a clear policy and clear guidance to the public about when such orders will be considered and what factors will be taken into account.
Attention is drawn to non-statutory guidance for order making authorities issued by the Home Office (Clean Neighbourhoods and Environment Act 2005, Guidance Relating to the Making of Gating Orders, March 2006 - go to www.respect.gov.uk select "work in the community" and search for "gating orders").
Authorities that have experience of developing policy and implementing it include City of York Council, the Council's policy can be downloaded from its website
For an example of policy relating to a County Council, see Cambridgeshire County Council's proposed policy on its website
It is recommended that authorities include detailed guidance in their policy statements to counter the impression given by some publications concerning "Alleygating", one of the issues being that some guidance that is still available pre-dates the Clean Neighbourhood and Environment Act powers (See for example the crime reduction section of the Home Office website)
Review of Gating Orders
Although there is no set time limit for a gating order, and in theory these powers can be used to completely restrict public access to highways on a permanent basis, the Home Office guidance recommends that order-making authorities conduct an annual review of the effectiveness of orders. It is good practice for individual authorities to state in their policy documents what review period they intend to use and how they intend to carry out a review of effectiveness of orders made.
