Three tests must be applied when considering the diversion of a footpath under section 119 of the Highways Act 1980: (i) is the diversion expedient in the interests of the owner of land crossed by the path? (ii) is the proposed diversion not substantially less convenient to the public? If (i) and (ii) are satisfied, (iii) is it expedient to confirm the change having regard to the overall impact of the diversion?
The High Court has considered these issues in Grace Bennett v Secretary of State for the Environment Food and Rural Affairs and another [2023] EWHC 2542 (KB).
The case concerned a footpath AB (on the plan below), which ran through the claimant’s farm at Bourton on the Water, Gloucestershire. The existing path was diverted in 1994 and, as shown on the plan, a barn built across part of its route. The claimant permitted walkers to walk around the barn to rejoin the AB line.
In July 2017, the claimant applied to divert the footpath to the – slightly longer – ACD route. While in September 2020 the local authority made an Order under section 119 of the 1980 Act, the Open Spaces Society objected. It argued that the proposed 2m width of the 49m-long CD section, was insufficient. It should be 3m wide, the same as the AC section. The case was referred to the respondent, Secretary of State. The inspector refused to confirm the Order on the basis that while tests 1 and 3 were satisfied, overhanging vegetation, the limited width and “tunnel-like” character of the CD route meant that 2 was not.
The existing path was of undefined width, the claimant did not own a 20m section from the northern boundary of her land to B which became waterlogged in winter, as did parts of the permissive route. The claimant had agreed to provide a rolled stone surface along the whole AD route and to install a culvert to address the waterlogging issue along the CD section. She had also agreed to enter into a maintenance agreement concerning the entire AD path.
The High Court quashed the inspector’s decision and remitted the case to the defendant for reconsideration. The inspector was wrong to say that no assurances were provided on the control of vegetation and it was procedurally unfair not to have referred to the claimant on the issue. The inspector had also misunderstood the correct line of the existing path and not conducted a proper comparison between the convenience of the existing path and the diverted path.
Louise Clark is a property law consultant and mediator
