Town and country planning – Public footpath – Diversion – Local authority making order modifying definitive map and statement to divert footpath – Defendant’s inspector confirming order – Claimant challenging decision on grounds inspector misinterpreted section 119(6) of Highways Act 1980 – Whether inspector erring in law by carrying out full balancing exercise taking into account benefits to landowner of proposed diversion – Application dismissed
The local authority made a diversion and definitive map order, modifying the definitive map and statement for Oxfordshire, by diverting 228 metres of a public footpath which lay to the east of Manor Farm, Little Rollright. The order was made under section 119 of the Highways Act 1980 and section 53A(2) of the Wildlife and Countryside Act 1981. An inspector appointed by the defendant secretary of state confirmed the order with certain minor modifications.
The claimant society challenged the decision on the grounds that the inspector had misinterpreted section 119 of the 1980 Act. The claimant contended that the inspector had erred in law by taking into account the benefit to the landowner of the diversion when assessing expediency in section 119(6) when she should have considered only the matters in section 119(6)(a) to (c) at that stage of her analysis.
Held: The application was dismissed.
(1) Section 119(6) involved three separate tests: (i) whether it was in the interests of the landowner for the path to be diverted; (ii) whether the proposed diversion was “substantially less convenient” to the public; and (iii) whether it was expedient to confirm the diversion. The first and second tests were both gateway tests. Unless they were passed, the decision-maker did not get to the third test.
(2) The starting point was that section 119(6) did not state that sub-paras (a) to (c) were exclusive factors. Although that was not conclusive, the use of the word “expedient” suggested that a broad balance or judgment was to be made by the decision-maker. If it had been intended that the expressly stated factors in (a) to (c) were an exclusionary list then it might be expected that the draughtsman would have made that clear. Just taking the words at face value it seemed more likely that (a) to (c) were mandatory factors to be taken into account, but that they were not intended to exclude all other factors. That would explain why those factors were listed but others such as the scale of the owner’s interest in the diversion was not. If the secretary of state concluded that it was expedient to make the order, then there was no further residual discretion.
(3) There was nothing in the words of the provision that supported the claimant’s argument that (a) to (c) were limited to matters which tended against confirmation of the order. That did not appear from the words and was not necessary to make the provision make sense or be capable of being operated effectively. The fact that (a) to (c) were matters which went against confirmation merely required the secretary of state to ensure that those negative factors were taken into consideration. To that degree they supported non-confirmation, but that did not mean that no other factors pointing the other way could be considered.
(4) The claimant’s construction would involve what were obviously relevant factors being made legally irrelevant. If the reason for the diversion was the benefit to the owner then the decision-maker had to be able to consider what weight was to be given to that benefit, depending on how great the benefit was judged to be; and the degree to which there was a benefit to the enjoyment of the public by the diversion of the path. Furthermore, the statutory scheme specifically allowed the local authority to apply on the ground of expediency to the public. Therefore, the scale of any benefit to the public had to be a relevant consideration. Moreover, there was nothing in the words of the statute to suggest that the “effects” in section 119(6) had to be adverse effects.
(5) The inspector had not erred in law. The claimant’s construction of section 119(6) was overly and unnecessarily complicated, involved writing words into the statute that were not there and made little sense in terms of the working of the provision.
George Laurence QC and Simon Adamyk (instructed by Richard Buxton Solicitors) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister