Court of Appeal upholds ruling on order diverting footpath round garden of private house

Wording in the Highways Act 1980 does not prevent an inspector from considering competing interests when a footpath is to be diverted, the Court of Appeal has found.

In Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2021] EWCA Civ 241 Lord Justice Lewis, with whom Lady Justice Elizabeth Laing and Lady Justice King agreed, dismissed an appeal brought by the Open Spaces Society (OSS) against the Secretary of State for Environment, Food and Rural Affairs over a 228 metres section of a path from Great Rollright, Oxfordshire.

This runs 3,225 metres through Little Rollright and beyond to connect with another footpath.

Lewis LJ said the appeal concerned the proper interpretation of section 119(6) of the Highways Act 1980, which deals with the process for confirmation of an order diverting a public footpath, bridleway or restricted byway.

An order was made by Oxfordshire County Council to divert the path so that it no longer ran through the garden of a private house but would instead be just outside.

The OSS objected but an inspector appointed by the Secretary of State confirmed it as being expedient in the interests of the house owner and not substantially less convenient to the public.

In the High Court the OSS submitted the inspector had misinterpreted section 119(6) of the 1980 Act as she could only have regard to the specific matters referred to in section 119 of the Act and could not balance those against the interests of the landowner.

The Secretary of State said the question of whether it was expedient to confirm the order could involve the interests of the landowner or the public and Lieven J rejected the OSS submission.

Lewis LJ said: “As a matter of language, the question at the third stage of the process of deciding whether to confirm a public path diversion order is whether the decision-maker is satisfied that ‘it is expedient to confirm the order’ and, in considering that question, ‘having regard to the effect’ of the order on the three matters specified in [the 1980 Act].

“That language indicates that the effect of the order on those matters must be taken into account in deciding the question of expediency. There is nothing in the language of the sub-section to indicate that other considerations, if relevant, cannot also be taken into account in deciding whether confirmation of the order ‘is expedient’.”

He said nothing in the Act suggested that Parliament intended to constrain what could be taken into consideration.

Lieven J therefore “was correct in holding that the inspector had not erred in her approach to deciding whether it was expedient to confirm the order” and he dismissed the appeal.

Mark Smulian