R v Secretary of State for the Environment, Transport and the Regions, ex parte Gloucestershire County Council

Part of footpath destroyed – Council making extinguishment order in respect of footpath – Objections to order – Inquiry held – Inspector finding footpath moving with river bank and public having right to deviate – Inspector refusing to confirm order – Council seeking to quash decision – Whether inspector erred in approach to right to deviate – Decision remitted to Secretary of State In July 1996 Gloucestershire County Council (the applicants) made the Council Public Footpath (EMA12, Maisemore) Extinguishment Order pursuant to section 118 of the Highways Act 1980. The effect of the order, once confirmed by the Secretary of State, would have been to extinguish a length of public footpath on the west bank of the River Severn. The applicants justified the order upon the basis that a substantial length of the footpath had disappeared into the river and there were obstructions to public passage, including the disappearance of a bridge, that made that part of the footpath impassable. The applicants sought confirmation of the order from the Secretary of State. There were objections and an inquiry was held. One of the objecting parties was the Ramblers Association. At the inquiry, the applicants contended, inter alia, that the footpath was not needed and that it would be disproportionately expensive to reinstate the river bank, so as to restore the line of the path. The objectors contended that there was sufficient use to justify the path’s retention and that, furthermore, the result of the erosion of the river bank was that the right of way could move as the river bank moved. The inspector concluded, inter alia, that: (i) the public were entitled, in these circumstances, to pass into a new line for the footpath, and had done so; (ii) the path along the bank of a river might move as the bank moved with the effect of erosion; and (iii) the public had continued to use the path and the right of way continued to exist. Consequently, he refused to confirm the order. The applicants sought to quash the inspector’s decision. The principal issue was the inspector’s approach to the right to deviate. The applicants submitted that the right was a restricted one and did not arise where the way had been destroyed. It was submitted that, in any event, the creation of a new way would have had to have been through the usual methods of creation. They further contended that the only way that the right of way could have moved with the river was if there had been some form of dedication of the land. The respondent submitted that there was no need to limit the right to cases where the obstruction was temporary. The Secretary of State relied upon Young’s case (1698) 1 Ld Raym 725 and submitted that the law recognised the special right of way associated with a river; the erosion of the river bank did not necessarily result in the loss of the right of way, simply its realignment. Held: The decision was to be remitted. Although it was important to maintain the public right to enjoy a highway such as the present one, that did not mean that wherever there was a highway, there was an absolute right to deviate. Neither Taylor v Whitehead (1781) 2 Dougl KB 745 nor Absor v French (1678) 2 Show 29 asserted a broad, unrestricted right to deviate. The way had been destroyed by the elements; therefore, no such right arose. A right to deviate onto the land of the defaulting landowner existed where there had been a good reason to deviate, or where there had been express dedication by the landowner. However, none of those circumstances were present in the instant case. In the absence of any dedication or user of the footpath, the public did not have a right to deviate. There was no evidence of user or dedication. A moving right of way did not exist: Young distinguished. The decision was to be remitted to the Secretary of State for his reconsideration. Peter Wadsley (instructed by the solicitor to Gloucestershire County Council) appeared for the applicants; Michael Bedford (instructed by the Treasury Solicitor) appeared for the respondent; George Laurence QC (instructed by Brooke North, of Leeds) appeared for the Ramblers Association. Sarah Addenbrooke, barrister