Town and country planning – Public footpath – Diversion – Local authority making order modifying definitive map and statement to divert footpath – Inspector appointed by respondent secretary of state confirming order – Appellant’s challenge to decision dismissed – Appellant appealing – Whether judge correct to hold that inspector had not erred in approach to deciding whether expedient to confirm the order – Appeal 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 respondent secretary of state confirmed the order with minor modifications.
The appellant society challenged that decision on the grounds that the inspector had misinterpreted section 119 of the 1980 Act. The appellant 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). She should have considered only the matters in section 119(6)(a) to (c) at that stage of her analysis. The judge considered that section 119(6) did not state that the factors in paragraphs (a) to (c) were the sole or exclusive factors to be considered. Rather, those factors were mandatory considerations but that did not exclude consideration of other relevant factors. The use of the word “expedient”, although not conclusive, suggested that a broader balance or judgment was to be made by the decision-maker: [2020] EWHC 1085 (Admin); [2020] PLSCS 85.
The appellant appealed. The question was whether the decision-maker was limited to considering the three factors referred to in section 119(6)(a) to (c), together with any material provision of a rights of way improvement plan, or could have regard to other considerations including, if appropriate, the interests of the owner or occupier of the land crossed by the path.
Held: The appeal was dismissed.
(1) As a matter of language, the question at the third stage of the process of deciding whether to confirm a public path diversion order was whether the decision-maker was satisfied that “it is expedient to confirm the order”, “having regard to the effect” of the order on the three matters specified in paragraphs (a) to (c). That indicated that the effect of the order on those matters had to be taken into account in deciding the question of expediency. There was nothing to indicate that other considerations, if relevant, could not also be taken into account in deciding whether confirmation of the order “is expedient”. In particular, the wording of section 119(6) did not prescribe, identify or define a limited set of considerations governing what might or might not be relevant to expediency. The language used in section 119(6) was in stark contrast to the words in section 119(1) which provided that it had to appear to the relevant council that, in the interests of the owner, lessee or occupier of land crossed by the path or of the public, it was expedient to make a public path diversion order. Section 119(1), therefore, defined the circumstances in which it would be expedient to make a public path diversion order. The wording of section 119(6) was different in that it provided that it had to be expedient to confirm the order “having regard to the effect” of the order on certain specified matters: Rambler’s Association v Secretary of State for Environment, Food and Rural Affairs and Others [2012] EWHC 3333 (Admin) applied.
The structure and purpose of section 119, viewed as a whole, confirmed that interpretation. Section 119(1) set out the circumstances in which a public path diversion order might be made, that is, where it was in the interests of the landowner, lessee or occupier, or the public, to make such an order. The order had to be confirmed. The relevant decision-maker could not confirm the order if it would not be in the interests of the owner or occupier of the land or of the public. If the diversion of the path would not, in fact, benefit the owner or the public, the order should not be confirmed. Similarly, unless the decision-maker was satisfied that the path would not be substantially less convenient for the public as a result of the diversion, the order could not be confirmed. Those two matters were necessary preconditions to confirming the order.
(2) Thereafter, the statute required the decision-maker to form a judgment as to whether it was expedient to confirm the order. In considering that issue, the section ensured that the decision-maker had to have regard to the effect of the order on certain matters, including the effect on public enjoyment of the path as a whole (not simply the length of the path that was to be diverted) and the effect on other land served by the existing path and on land which the newly diverted path would cross. The purpose underlying that stage of the confirmation process, therefore, was to ensure that those matters specifically set out in paragraphs (a) to (c), along with any other relevant matter (which could include the importance of the public interest, or the interests of the landowner or occupier in the diversion being made), were taken into account when reaching the decision on expediency. It was for the decision-maker to weigh the different considerations and determine whether or not confirmation of the order was expedient. The question was whether section 119, properly interpreted, was intended to permit the adverse effects contemplated by paragraphs (a) to (c) to be balanced against other considerations.
(3) Therefore, in deciding whether it was expedient to confirm a public path diversion order in the exercise of the power conferred by section 119(6), the decision-maker had to have regard to the effect of the matters specified in paragraphs (a) to (c) (and any material provision of a rights of way improvement plan) and might have regard to any other relevant matter, including if appropriate the interests of the owner or occupier of the land over which the path currently passed, or the wider public interest. The judge correctly held that the inspector had not erred in her approach to deciding whether it was expedient to confirm the order.
George Laurence QC and Simon Adamyk (instructed by Richard Buxton Solicitors) appeared for the appellant; Ned Westaway (instructed by the Government Legal Department) appeared for the respondent.
Eileen O’Grady, barrister
