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Diverting a footpath under section 119 of the Highways Act 1980

The Court of Appeal has recently considered the criteria for the diversion of a footpath, bridleway or restricted byway. Trevor Ward examines the ruling.

In Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2021] EWCA Civ 241 the Court of Appeal has upheld the High Court’s decision in the case of The Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1085 Admin (05 May 2020) as to the correct criteria to be applied when considering applications to divert a footpath, bridleway or restricted byway under section 119 of the Highways Act 1980.

The judgment confirms that in carrying out the test of expediency under section 119(6) of the Act, the decision making is not confined to determining the matter solely on the basis of the criteria under section 119(6)(a),(b), and (c). Provided that those criteria are specifically considered, then the decision maker can take account of a broad range of matters in reaching a conclusion, even if those matters have already been considered under other requirements of section 119 of the Act.

The appeal concerned the correct approach to the specific requirements as to whether it was expedient to confirm an order having regard to the matters specified in section 119(6)(a) to (c) of the 1980 Act and their application to an order diverting a 228 metre section of a footpath known as Rollright Footpath No. 7 (“FP7”).

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Section 119(6) provides as follows:

“(6)  The Secretary of State shall not confirm a public path diversion order, and a council shall not confirm such an order as an unopposed order, unless he or, as the case may be, they are satisfied that the diversion to be effected by it is expedient as mentioned in subsection (1) above, and further that the path or way will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effect which—

(a)  the diversion would have on public enjoyment of the path or way as a whole,

(b)  the coming into operation of the order would have as respects other land served by the existing public right of way, and

(c)  any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it,

….”

In 2019, the Inspector appointed to determine the merits of making the diversion order considered that the order should be confirmed. With regard to the criteria under section 119(6)(a) to (c), she considered that the diverted footpath would be less enjoyable than the existing route for most people but the effect on enjoyment had to be considered in the context of the path as a whole. The diversion only affected 7% of the path and from that viewpoint, the inspector considered that the loss of enjoyment would not be significant. The inspector did note that the diversion would cause the loss of views of Manor Farm, a grade II listed building dating from the 1600’s and accepted that the views of the house and garden were unique and unlike anything else along FP7. However she considered that the views of the house and garden did not constitute such a major attraction on the footpath for the loss of enjoyment to be regarded as more than relatively minor. The inspector then set out her views on whether it was expedient to confirm the Order in the following terms:

“44. I have concluded above that the Order is expedient in the interests of the landowners and occupiers on the grounds of privacy. The proposed route will not be substantially less convenient. There would be a diminution in public enjoyment, but this would not be significant in terms of the effect on the use of the path as a whole.

“45. The judgment in Young is authority that in deciding whether to confirm an order, the criteria in section 119(6) should be considered as three separate tests, two of which may be the subject of a balancing exercise. Where, as in this case, the proposed diversion is considered expedient in terms of test (i), is not substantially less convenient in terms of (ii), but would not be as enjoyable to the public, the inspector must balance the interests raised in the two expediency tests, i.e. the interests of the applicant (i), and the criteria set out in section 119(6)(a), (b) and (c) under (iii) to determine whether it would be expedient to confirm the Order.

“46. The [Open Spaces Society] invites me to take a contrary approach to the followed in Young . It submits that on a proper reading of section 119(6) if the diversion fails any one of tests comprised in section 119 then the diversion must fail. According to the [Open Spaces Society] no balancing exercise should be undertaken.

“47. However, Young is settled law and I see no reason to depart from it. In this case, there is a relatively minor loss of public enjoyment of the path as a whole which must be weighed against the interests of the owners/occupiers. On balance, I consider that the benefits to the owners and occupiers outweigh the loss of public enjoyment. As such it would be expedient to confirm the Order.”

The Open Spaces Society challenged the decision in the High Court on the basis that the inspector erred as she was confined to considering the matters in paragraphs (a), (b) and (c) of sub-section 119(6) of the 1980 Act, and was not entitled to consider other matters, such as the interests of the owners or occupiers, when deciding whether it was expedient to confirm the Order at the final stage of the process under section 119(6)(a) to (b).

The High Court rejected the challenge. Although Lieven J. accepted that contrary to the inspector’s decision the case of Young was not determinative of the matter, she considered that section 119(6) of the 1980 Act did not state that the factors in paragraphs (a) to (c) were the sole or exclusive factors to be considered. Rather, those factors were mandatory considerations that had to be taken into account but that did not exclude consideration of other relevant factors. The use of the word “expedient”, although not conclusive, suggested that a broader balance or judgment was to be made by the decision-maker.

The judgment of the Court of Appeal, considered that “the appeal raises one principal issue concerning the proper interpretation of section 119(6) of the 1980 Act. It concerns the question of whether a decision-maker deciding if it is expedient to confirm a public path diversion order is limited to considering the three factors referred to in section 119(6)(a) to (c) of the 1980 Act, together with any material provision of a rights of way improvement plan, or whether the decision-maker is entitled to have regard to other considerations including, if appropriate, the interests of the owner or occupier of the land crossed by the path” – Lewis L.J. at paragraph 16.

With regard to that matter the Court of appeal confirmed the decision of Lieven J. The Court considered that “in deciding whether it is expedient to confirm a public path diversion order in the exercise of the power conferred by section 119(6) of the 1980 Act, the decision-maker must have regard to the effect of the matters specified in paragraphs (a) to (c) (and any material provision of a rights of way improvement plan) and may have regard to any other relevant matter, including if appropriate the interests of the owner or occupier of the land over which the path currently passes, or the wider public interest –Lewis L.J. paragraph 42.

It seems that the judgment may be considered as useful to many landowners as enabling the benefit of the diversion to them being not only a reason for the making of the order, (which is often the reason given for making the order), but also being one of the factors to take account of again when carrying out the expediency test under section 119(6)(a) to (c) of the Act. The case has also confirmed that the test of expediency raises the possibility of considering a very broad range of issues when determining the merits of making a diversion order. In any given case there could be a whole range of matters which may be advanced for or against the making of the order.

Trevor Ward is a barrister at Pallant Chambers.

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