New ammunition for fighting landowners’ path-diversions

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Ever since we received a favourable opinion from George Laurence QC on the interpretation of ‘expedient’ in section 119 of the Highways Act 1980 (the section which deals with the diversion of public paths), the Ramblers and ourselves have been looking for a suitable case on which to test this.

The case emerged when the Ramblers, Bodicote Parish Council (represented by our local correspondent Chris Hall) and other objectors lost the diversion order for Bodicote footpath 8 and Bloxham footpath 2, which ran past Bodicote Mill in north Oxfordshire (see Open Space spring 2012 page 13).  Bolstered by Mr Laurence’s opinion, Chris had argued at the public inquiry that the term ‘expedient’ in section 119(1) of the Highways Act 1980 was a separate test from that of whether the diversion was in the interests of the owner, and that in considering whether the order was ‘expedient’ the council should have taken account of other arguments, such as the loss of an historic path and the cost to a cash-strapped local authority of gratuitously increasing the value of the applicants’ property, and that the public-inquiry inspector should now do so.  This was rejected by the inspector, Peter Millman, who confirmed the order.

High court
The Ramblers, with George Laurence arguing their case, appealed to the high court for the order to be quashed, hoping in addition for a ruling on the interpretation of ‘expedient’.  Unfortunately the judge, Mr Justice Ouseley, did not quash the order.  The ancient path no longer runs past the old mill but on a nondescript and ill-defined route across fields, and the value of the Westons’ property has been substantially increased at public expense.  However, the judge did make some useful pronouncements which will stand us in good stead when fighting diversion orders which favour landowners.

The ancient path past Bodicote Mill, now diverted across fields.

The inspector in his decision,  para 70, referred to two arguments which were raised by a number of the objectors, firstly that because the applicants knew of the existence of the footpath when they bought the mill it was not legitimate for them to expect that it should be diverted, and secondly that the diversion might set a precedent for the diversion of other millside paths.  He said: ‘Understandable through these arguments might be, they are not relevant to the tests for confirmation set out in s119 of the 1980 act.’

Before the matter came to court, the secretary of state had conceded that the inspector erred in law in treating those two matters as irrelevant, but had been persuaded by the landowners, the Westons, that the order should not be quashed.

In deciding whether to quash the order, the judge was guided by the test derived from Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1989] 57 P&CR 306.  Here the appeal court ruled that where a decision made as the result of an error was unlawful, the court need not quash that decision if it was satisfied that the decision would have been the same had the error had not been made.

The judge considered that use of the word ‘expedient’ in section 119(1) is governed by the words ‘in the interests of the landowner’.  He said: ‘The question for the council and indeed the question for the inspector is whether it is expedient in the interests of the landowner that the order be made’ (para 25).  However, the use of ‘may’ in s119(1) gives the council a discretion whether to make the order even if it is expedient in the interests of the landowner.  The council may consider the further tests which are set out in s119(6) which must in any case be considered at confirmation stage, and these include consideration of whether it is ‘expedient to confirm the order’ having regard to further tests relating to public enjoyment etc.

The judge agreed with Mr Laurence that ‘expediency’ in s119(6) could include those matters referred to by the inspector in paragraph 70 as well as the historical integrity of the route.  Said the judge: ‘In my judgment, that is the right approach to section 119(6) and expediency.  It covers all considerations that are material. The fact that there is a focus given by the statute to specifying factors does not narrow down the scope of expediency in its application at that stage’ (para 28).  (The meaning of ‘material’ is of course important and we may need further advice on this.  ) However, applying the Simplex test, he did not consider that if the inspector had taken account of the two matters in paragraph 70 he would have come to a different conclusion.  Therefore he did not quash the order.

The judge opined that issues (which all too often arise), such as a landowner setting out ‘to make use of the footpath less attractive by work at its edges, hostility en route, and so on’ might be relevant when the interests of the landowner are examined but are more likely to be relevant under section 119(6). He also recognised that there may be circumstances in which the argument of the diversion setting a bad precedent might be used.

The conclusion for us is that we should encourage councils, when deciding whether to make a diversion order in the interests of a landowner, to consider all relevant factors, not just those mentioned in section 119(1), since they will have to consider them anyway when it comes to confirmation—either by the council itself for an unopposed order, or an inspector for an opposed order. Such factors could include the hostility of the landowner, the fact that he has made the definitive route unfriendly by intimidating gates and CCTV cameras, or ploughed or cropped it, and the historic integrity of the path. So the Ramblers’ efforts in taking this case have been extremely worthwhile, and we are grateful to them for doing so.

Ramblers’ Association v (1) the Secretary of State for Environment, Food and Rural Affairs, (2) Oxfordshire County Council, (3) Susan Weston, (4) Michael Weston, [2012] EWHC 3333 (Admin), 8 November 2012.  You can read the judgment here.

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