Action may be unlawful

Under an article headed '˜County answers the calls to make pavements safer' (Berwick Advertiser, January 12), the newspaper's readership was told that '˜new rules are set to make pavements in Northumberland safer and easier to negotiate for pedestrians'.

Sunday, 29th January 2017, 8:00 am

So, what is the current legal minimum width of a pavement?

The simple answer is that there is no current legal minimum width. There is a recommended minimum width, which HM Government would like local authorities to adhere to, but it is not legally enforceable.

Why not? Well, with exceptions, a local authority does not own the land beneath the pavement, nor the airspace above it. They are owned by the owner of the freehold adjacent to the pavement.

All that the local authority owns is the pavement itself and the footings beneath the payment of a depth sufficient to support the payment.

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So, in effect, the owner of the pavement has no control whatsoever over the pavement in law, whether he be a freeholder or a leaseholder. It is the owner of the adjoining land, not the council, who owns the pavement.

The article states that the council will issue guidance that ‘includes the process that the council will follow where objects need to be removed (from pavements)’.

Perhaps Coun Swithenbank, Northumberland County Council’s cabinet member for local services, is of the opinion (a) that ‘guidance’ is another word for ‘law’, and (b) that ‘guidance’ must be complied with as if it is law?

Well, ‘guidance’ is not ‘law’ and thus if a council employee ‘orders’ a shopkeeper, who is the tenant of a shop adjacent to the pavement, to remove his A-board off a payment, that ‘order’ can be ignored.

But also, given that the council has no interest in the pavement, other than to ensure that people are not stopped from passing over it, the owner of the pavement – not the council, but the owner of the adjacent freehold – can raise a court action against the council for interfering with the owner’s rights of ownership.

Indeed, in the absence of advance permission from the owner of the pavement, a council erecting a sign, such as ‘No A-boards allowed on this pavement’, without a prior permission from the owner of the airspace above the payment could be deemed to be a trespasser and thus liable to pay damages to the adjoining freeholder, and/or rent to the freeholder.

As one who has to use a walking-stick, I appreciate what Coun Swithenbank and others are trying to do, but ‘trying to keep the local economy vibrant in Northumberland’ in this way is unacceptable.

I also take issue with the misuse by the county council of the word ‘guideline’.

Perhaps Northumberland County Council should research the subject with the Land Registry.

E Sutherland-Loveday