Enforcement is an important and key element in Public Rights of Way work that is often overlooked or approached in an ad hoc way. Enforcement is a vital and necessary part of the job of fulfilling the duties of a highway authority and should be undertaken in an efficient and professional manner. See also Enforcement Policies and Procedures.
It ensures that a highway authority is adequately fulfilling its statutory duties and demonstrates this to elected members, the public and user groups. It also ensures that an authority is operating efficiently and cost effectively which can be critical in times of resource pressures.
Enforcement needs to be fair, robust, transparent and easily understood by the public and easily implemented by officers. When considering an approach to enforcement, practitioners need to be mindful of their statutory duties and their overall objectives.
It can be easy to be deflected into endless negotiation rather than bringing a matter to a resolution. The word negotiation does not appear in the Highways Act 1980! The Concise Oxford Dictionary defines negotiate as; "confer with another with a view to a compromise". Very largely we are not in the business of compromise; we are in the business of compliance with the law. If Parliament had only intended us to negotiate with offenders then it would not have provided us with a range of specific duties and extensive powers to implement them.
However, we need to ensure that the approach adopted achieves its objectives without being too heavy handed. Many of the offences provide powers of prosecution but we need to bear in mind our overall objectives. This is not necessarily to prosecute landowners and other offenders but to keep paths open. Thus whilst the power of prosecution is available it is one of many weapons at our disposal and the most successful enforcement approaches achieve a balance between problems and sanctions resulting in speedy, cost effective and successful enforcement.
That balance should also reflect National Guidelines. Since 2008 the Concordat for Good Enforcement has been joined by the National Regulators Compliance Code which incorporates the Macrory Principles. Neither is compulsory in rights of way work although it is likely that authorities will have adopted them as part of an overarching corporate policy and you will need to ensure that your enforcement activities and policies sit comfortably under that corporate umbrella of policy.
The Concordat for Good Enforcement was introduced by Government in 1998 whilst the Regulators Compliance Code, which is a statutory instrument applying to environmental health, trading standards and licensing areas of enforcement work, was the product of two reports in 2005 and 2006. Firstly the Hampton Report, 'Reducing Administrative Burdens: Effective Inspection and Enforcement' and secondly Professor Richard Macrory's report 'Regulatory Justice: Making Sanctions Effective'. Both these reports contributed to the Legislative and Regulatory Reform Act 2006 (Section 22) and implemented in 2008. The Macrory Principles were embodied by the legislation from which the Regulators Compliance Code emerged and they provide a very sound guiding basis for an enforcement policy.
Macrory's Principles provide for a flexible and proportionate approach with a broad range of sanctioning options allowing regulators to respond to the needs of individual cases and the nature of the underlying offence. Applying the appropriate sanctions improves overall compliance and adds credibility to the enforcement process.
The principles include the following Six Penalties Principles and Seven Characteristics for the design of an enforcement regime.
Six Penalties Principles
A sanction should:
- Aim to change the behaviour of the offender;
- Aim to eliminate any financial gain or benefit from non-compliance;
- Be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction;
- Be proportionate to the nature of the offence and the harm caused;
- Aim to restore the harm caused by regulatory non-compliance, where appropriate;
- Aim to deter future non-compliance.
- Publish an enforcement policy;
- Measure outcomes not just outputs;
- Justify their choice of enforcement actions year on year to stakeholders, Ministers and Parliament;
- Follow-up enforcement actions where appropriate;
- Enforce in a transparent manner;
- Be transparent in the way in which they apply and determine administrative penalties; and
- Avoid perverse incentives that might influence the choice of sanctioning response.
If Rights of Way practitioners apply this approach they will be ensuring that they have an enforcement policy that is sufficiently flexible, transparent yet robust enough to be effective, have the ability of resisting challenge and offer speedy resolutions that are cost effective.
Landowners and Occupiers
The landowner and occupier must respect the public's rights of passage and not do anything that would inconvenience or endanger the public in any way. The legislation includes special provisions to deal with gates and stiles and to allow ploughing and cultivation.
Building good relationships with landowners can help significantly with keeping the network open. (See non-confrontational approaches to working with landowners.)
Complaints from the public
Fault Report Management gives a sample procedure for managing reports from the public of faults on the rights of way network with a step by step approach starting from logging the initial complaint.
The Natural England/Countryside Agency publication CA 9 - Out in the Country was aimed at members of the public wishing to know where to go and what they could do in the countryside. It explains who is responsible for what, and can be very useful to send out to walking groups or volunteer wardens who may wish to report problems. It is free from Natural England as a download.
Rights of Way affected by development
The basis of good management of rights of way affected by development is twofold: an acknowledgement of the importance of public rights of way in planning policy documents and good liaison between planning officers and rights of way officers. Influencing planning policy to ensure that rights of way are included is important. See Development and rights of way for practical advice on how to deal with rights of way that are affected by the planning process.
Authorities can make a Traffic Regulation Order under the Road Traffic Regulation Act 1984 to restrict or prohibit the use of the way by all or certain types of user. See TRO procedures, Advice on TROs, TRO Legislation.