Application for footpath diversion order – Members of subcommittee voting against application – Whether subcommittee failing to take into account applicants’ interests – Whether subcommittee failing to comply with rules of natural justice and guilty of procedural impropriety and unfairness – Application for judicial review refused
The applicants were the owners of Stanhope Grange, Stanhope, Durham. On August 1 1995 they applied for a public footpath diversion order for footpath 24B, which ran through their property, under sections 118 and 119 of the Town and Country Planning Act 1990. The ground for the diversion was that it was expedient in the applicants’ interests for reasons of security, damage by livestock, violence by trespassers and privacy. A different footpath was suggested, which was slightly longer and on steeper land not over the applicants’ property. On receiving the application Durham County Council consulted various organisations. Objection letters were received from Stanhope Parish Council and Wear Valley Parish Council.
The application was put before a rights of way special subcommittee, whose members made a site visit and on January 13 1997 held a meeting in the village. The chairman sat at the head of the hall with three others, who were not members of the subcommittee. The three other members sat on the public benches next to objectors and it was not until they voted, rejecting the application, that it became apparent that they were members. The applicants sought judicial review of the decision, contending that the subcommittee had erred in law in failing to consider whether it was expedient in the interests of the applicants to divert the footpath. It was further contended that the subcommittee had failed to comply with the rules of natural justice and were guilty of procedural impropriety and unfairness by taking into account allegations of intimidation and obstruction by the applicants, and by not identifying the members until the end of the meeting.
Held The application was dismissed.
1. It was impossible to conclude that the subcommittee had ignored the appellants’ interests. They were referred to in a report which was handed out prior to the meeting, and they had been reiterated by the applicants’ representative at the meeting and were expressly referred to in the minutes of the meeting.
2. The letters from the parish councils had recorded points raised by members, which had included complaints about obstruction and intimidation, and the letters had been raised at the meeting. However, the issue of whether the matter had been raised was different to that of whether it had been taken into consideration. The minutes of the meeting recorded that it had been said that they should be disregarded. The members had moved to reject the application on the basis of public loss not because of problems in the past, and accordingly it was impossible to conclude that the subcommittee had taken the past history of obstruction and intimidation into account. There was nothing unfair about the arrangements adopted at the meeting since each side had had a chance to present its case. Therefore the subcommittee had not failed in its duty.
Jacqueline Smart (instructed by Richmond James & Lee, of Consett) appeared for the applicant; Frances Patterson (instructed by the solicitor to Durham County Council) appeared for the respondents.
