R (on the application of Ramblers Association) v Secretary of State for Defence

Footpath — Stopping-up order — Sections 16 and 17 of Defence Act 1842 — Whether defendant empowered to make order in respect of land not in process of being acquired for defence purposes — Whether acceptable to notify replacement route entirely on pre-existing vehicular highways — Claim allowed The defendant secretary of state made an order stopping up a footpath in purported exercise of his powers under sections 16 and 17 of the Defence Act 1842. Section 16 conferred a power “to enter on, survey, and mark out… any lands, buildings, or other hereditaments or easements wanted… for the defence of the realm, or to stop up or divert any public or private footpaths or bridle-roads… and to treat and agree with the owner… either for the absolute purchase thereof, or for the possession or use thereof”, subject to the requirement in section 17 that another footpath should be “provided and made” to replace any that was stopped up. The footpath to which the stopping-up order related crossed land owned by the Ministry of Defence and passed a military base before joining up with a highway. The defendant notified the public of a replacement route that ran along existing vehicular public highways.The claimant brought judicial review proceedings to challenge the legality of the stopping-up order. It contended that the power to stop up footpaths was intended to apply only where the defendant was in the process of acquiring land for defence purposes. It further contended that, even if section 16 had applied in the instant case, the defendant had failed to comply with his obligation under section 17 since: (i) he had not “provided and made” a replacement route in circumstances where he had created nothing new but had merely referred the public to pre-existing highways; (ii) the replacement for a footpath had also to be a footpath, not a vehicular highway; and (iii) although the defendant could in part use the existing highway network, there had to be, in substance, a new route such that the public did not suffer any significant net loss of footpath.Held: The claim was allowed. (1) In “providing and making” a replacement for a stopped up footpath, the defendant was entitled to have regard to the existing highway network and to use parts of it. The claimant’s submission that there should be no net loss of footpath or bridleway to the public was an anachronistic approach to section 17. In passing the 1842 Act, parliament had been concerned not with countryside recreation but with ensuring ease of access between two points. There was no reason, in that context, why a route over a footpath should not be replaced by one over a vehicular highway, which included the right of way on foot as well as additional rights.(2) However, the defendant had not complied with his section 17 duty in circumstances where he had told the public that it could use the existing highway network to travel between the relevant points and had not in fact “provided and made” anything. Section 17 was in peremptory terms and required that a replacement path “shall” always be provided and made at the defendant’s expense. That duty was not removed merely because the defendant considered that, in light of the existing highway network, it was unnecessary to incur the expense of providing a new path. The fact that the duty might be satisfied by providing a relatively short stretch of path did not abrogate the duty entirely. The defendant’s decision was unlawful since no path at all had been provided. That made it unnecessary to decide in how much new path would be required to comply with section 17; that would be a question of fact and degree in each case.Per curiam: Although it was not necessary to decide the point in the light of the decision on section 17, the preferable construction of section 16 was that the power it conferred to stop up or divert footpaths and bridleways was not confined to paths on land that was in the process or being acquired, or had been acquired, pursuant to that section, but extended, as its wording indicated, to “any” footpath or bridleway, provided the order was made for the purpose of defence of the realm.Nathalie Lieven QC (instructed by the Treasury Solicitor) appeared for the claimant; Ross Crail (instructed by Zermasky & Partners, of Leeds) appeared for the defendant.Sally Dobson, barrister