R (on the application of Hargrave and another) v Stroud District Council

Footpath — Diversion — Confirmation — Appellants applying for footpath diversion order — Council making order — Objections raised — Council rejecting application instead of referring order to Secretary of State for confirmation — Whether council under duty to refer order to Secretary of State — Whether discretion to withdraw order — Section 119 of Highways Act 1980 — Appeal dismissedThe appellants occupied a property, owned by the second appellant, over which there was a public right of way. The footpath, which was used frequently, passed close to the appellants’ dwelling. The second appellant applied to the respondent council for a diversion of the footpath on the ground that it was expedient to her interests, within section 119 of the Highways Act 1980. The council made the order, but then received objections. Under section 119(1), the council had no power to confirm an order to which objections were received and not withdrawn, but could refer the matter to the Secretary of State for confirmation. The council decided not to refer the appellants’ application to the Secretary of State. They accordingly rejected the application. The appellants sought judicial review of that decision on the ground, inter alia, that the council, once they had made a diversion order, were under a duty to refer it to the Secretary of State for confirmation in the event that objections were received. Dismissing the claim, the judge held that the council’s power to make an order was triggered by a finding that it was expedient in the interests of the landowner or the public, after which they had a very broad discretion as to whether to make the order and, if an order were made and opposed, whether to refer it to the Secretary of State. He considered that the council had been entitled, in the exercise of their discretion, to take all relevant factors into account, and had not acted irrationally in deciding not to refer the appellants’ application. He further rejected a challenge by the appellants based upon Articles 6 and 8 of the European Convention on Human Rights. The appellants appealed. Held: The appeal was dismissed. The 1980 Act envisaged a multi-stage process for the diversion of paths. The council’s power to make a diversion order arose where the condition precedent of expediency was met. Thereafter, the use of the word “may” in section 119(1), rather than “must”, indicated that the council had a discretion as to whether to make the order. The council were entitled, in the exercise of that discretion, to have regard to all the matters listed in section 119(6) as applying to confirmation decisions. The mere fact that a diversion was expedient to the interests of the appellant did not place the council under a duty to make an order, and they were not required to put the diversion mechanism into progress in cases where it was manifest that any order made would not be confirmed. Once an order was made, there was no duty either to confirm it or, if it was opposed, to refer it to the Secretary of State. Section 119 was not to be construed as constraining the council to continue the diversion procedure once started. The council were entitled to change their minds about the desirability of the diversion and discontinue the statutory procedure if there were good reasons for doing so. The council’s decision not to refer the appellants’ application to the Secretary of State was not irrational, and could not be impugned. The appellants’ Convention arguments did not assist them. There was nothing in either Article 6 or 8 that required a different construction to be placed upon section 119, or to render irrational that which was otherwise rational. Peter Birts QC and Peter Mantell-Sayer (instructed by Ashton Graham, of Bury St Edmunds) appeared for the appellants; Douglas Edwards (instructed by the solicitor to Stroud District Council) appeared for the respondents. Sally Dobson, barrister