The Highways Act 1980 contains provisions, in section 118, that permit a highway authority to grant an extinguishment order in respect of a public footpath if it should be stopped-up on the grounds that it is no longer needed for public use. Such an order can be confirmed by the council if unopposed but, if opposed, by the Secretary of State. The authority must consider the extent to which the path or way would, except for the order, be used by the public, and consider the effect that the extinguishment would have.
In the case of R (on the application of Hertfordshire County Counci) v Secretary of State for the Environment Food and Rural Affairs [2005] PLSCS 174 the authority had sought to rationalise the local footpath network and had reached agreement with the various parties affected for paths either to be extinguished, diverted or created. An agreement under section 25 of the Highways Act 1980 was concluded in which it was stated that the new paths were to come into effect prior to the extinguishment of existing paths, by way of an order under section 118. Four orders were made in relation to the paths and an inquiry was held. The appointed inspector confirmed one order but not the others. The question was whether the routes to be extinguished were likely to be used, not whether they were needed. The inspector considered that the alternative routes provided for in the section 25 agreement could not be taken into consideration in determining whether to approve the extinguishment order. Without any available alternative rights of way, therefore, there was no reason why the paths would not be used.
The authority applied for judicial review of the inspector’s decision on the basis that he should have taken the proposed new paths into account. The court found that the problem arose because the authority had sought confirmation of an order for stopping-up, whereas the appropriate course of action was to apply to have the paths rerouted. Section 118 does not apply where an existing path will not be needed if an alternative route is provided. A public path creation order or a diversion order could be taken into account but only where orders had been submitted for confirmation and where proceedings were concurrent with those relating to the extinguishment order, so that the decision maker could consider the merits of all the orders concurrently.
Section 118 makes no reference to section 25 agreements which the authority had argued should be treated in the same way as creation orders. However, as far as the public was concerned, there would be significant differences between the two methods of creating new pathways. There is no requirement for consultation to be undertaken with a section 25 agreement whereas when a creation order is proposed, there is a requirement for public notification and anyone who objects is entitled to make representations to an independent inspector. The same provision applies in relation to a proposed diversion order where, in addition, the route diverted must satisfy a series of further tests designed to protect the public interest.
This case is a useful reminder to authorities that careful consideration should be given to the procedure to be adopted when such orders are made. In this instance the authority had assumed the expense not only of concluding a section 25 agreement but also of promoting four extinguishment orders with the resultant time and cost involved, particularly in relation to such matters as publicity and notification. All of these costs were abortive costs and the authority would now need to reconsider its approach to the public path network in the area.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
The Highways Act 1980 contains provisions, in section 118, that permit a highway authority to grant an extinguishment order in respect of a public footpath if it should be stopped-up on the grounds that it is no longer needed for public use. Such an order can be confirmed by the council if unopposed but, if opposed, by the Secretary of State. The authority must consider the extent to which the path or way would, except for the order, be used by the public, and consider the effect that the extinguishment would have.
In the case of R (on the application of Hertfordshire County Counci) v Secretary of State for the Environment Food and Rural Affairs [2005] PLSCS 174 the authority had sought to rationalise the local footpath network and had reached agreement with the various parties affected for paths either to be extinguished, diverted or created. An agreement under section 25 of the Highways Act 1980 was concluded in which it was stated that the new paths were to come into effect prior to the extinguishment of existing paths, by way of an order under section 118. Four orders were made in relation to the paths and an inquiry was held. The appointed inspector confirmed one order but not the others. The question was whether the routes to be extinguished were likely to be used, not whether they were needed. The inspector considered that the alternative routes provided for in the section 25 agreement could not be taken into consideration in determining whether to approve the extinguishment order. Without any available alternative rights of way, therefore, there was no reason why the paths would not be used.
The authority applied for judicial review of the inspector’s decision on the basis that he should have taken the proposed new paths into account. The court found that the problem arose because the authority had sought confirmation of an order for stopping-up, whereas the appropriate course of action was to apply to have the paths rerouted. Section 118 does not apply where an existing path will not be needed if an alternative route is provided. A public path creation order or a diversion order could be taken into account but only where orders had been submitted for confirmation and where proceedings were concurrent with those relating to the extinguishment order, so that the decision maker could consider the merits of all the orders concurrently.
Section 118 makes no reference to section 25 agreements which the authority had argued should be treated in the same way as creation orders. However, as far as the public was concerned, there would be significant differences between the two methods of creating new pathways. There is no requirement for consultation to be undertaken with a section 25 agreement whereas when a creation order is proposed, there is a requirement for public notification and anyone who objects is entitled to make representations to an independent inspector. The same provision applies in relation to a proposed diversion order where, in addition, the route diverted must satisfy a series of further tests designed to protect the public interest.
This case is a useful reminder to authorities that careful consideration should be given to the procedure to be adopted when such orders are made. In this instance the authority had assumed the expense not only of concluding a section 25 agreement but also of promoting four extinguishment orders with the resultant time and cost involved, particularly in relation to such matters as publicity and notification. All of these costs were abortive costs and the authority would now need to reconsider its approach to the public path network in the area.
Gill Castorina is an associate at
