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

Claimants applying to council for order diverting footpath – Objections raised to council’s resolution to make order – Council not referring application to Secretary of State – Application failing – Whether council under duty to refer order to Secretary of State – Whether discretion to withdraw order – Section 119 of Highways Act 1980 – Application dismissed The second claimant owned, and the claimants occupied, a property over which there was a public right of way. The footpath, which was used frequently, passed close to the claimants’ dwelling. The second claimant applied to the defendant council for a diversion of the footpath on the basis that the diversion was expedient to her own interests, within section 119 of the Highways Act 1980. The council resolved to make an order for the diversion of the path, and subsequently received letters of both support and objection to the proposal. A report by the director of corporate services stated: “The council cannot confirm an order made under section 119 that has been opposed and where the objections have not been withdrawn. The council may either refer the matter to the Secretary of State for confirmation… or not refer the matter at all, at which point the application fails”. The council chose not to refer the matter to the Secretary of State, and rejected the application. The claimants sought judicial review of that decision, contending that a diversion order under section 119 was the subject of two separate and distinct statutory tests to be applied by separate statutory bodies, namely: (i) the order-making test; and (ii) the confirmatory test. They submitted that the test that the council had to apply when considering such an application was the order-making test, namely, whether it appeared to the council that, in the best interests of the second claimant, it was expedient to divert the footpath. The council, in considering whether to make an order, should not give any consideration to the confirmatory test in section 119(6), which set out factors for the Secretary of State to consider when deciding whether to confirm an order. They contended that once the council had made a diversion order, they were under a duty, save in exceptional circumstances, to refer the order to the Secretary of State for confirmation. The claimants further contended that the council had acted in breach of Articles 6 and 8 of the European Convention on Human Rights (ECHR). Alternatively, the claimants contended that, in so far as the council had a discretion not to refer the order: (i) their discretion was limited to the section 119(1) question, namely, whether it was in the interests of the owner that the path be diverted; and (ii) the council’s exercise of discretion was irrational. Accordingly, the issue was whether, upon a true construction of section 119(1) of the 1980 Act, the council were obliged to refer the diversion order to the Secretary of State for confirmation in the event that objections existed, or whether they had the discretion to withdraw the order themselves in the light of such objections. Held: The application was refused. The language of section 119 of the Act was clear. The use of the word “may” plainly indicated the existence of a discretion, and there was no justification for interpreting the word “may” as “must”. Therefore the council had a discretion when deciding whether to make a diversion order, and, if they did make such an order, they had a further discretion as to whether to refer that order to the Secretary of State for confirmation. Such an interpretation was not inconsistent with the ECHR. Section 119(1) operated in the following way: (i) the subsection was triggered when it appeared to a council that it was expedient to the interests of the owner that the path be diverted: that was a low threshold; and (ii) once the council’s powers were engaged, the word “may” suggested that they had a very broad discretion and that all relevant factors to the exercise of that discretion could be taken into account. It did not follow that because section 119(6) required the Secretary of State (when the order was opposed) and the council (when the order was unopposed) to have regard to certain factors upon confirmation, that they were not relevant factors to which the council could have regard when deciding whether to make the order in the first instance, or to refer it to the Secretary of State thereafter. In this case, the council did not exercise their discretion irrationally: R v Bath and Nort East Somerset Council, ex parte Master, Co-Brethren and Sisters of the Hospital of St John the Baptist [1999] NPC 89 considered. Peter Birts QC (instructed by Ashton Graham, of Bury St Edmunds) appeared for the claimants; Douglas Edwards (instructed by the solicitor to Stroud District Council) appeared for the defendants. Sarah Addenbrooke, barrister