What Factors Can An Inspector Take Account Of When Considering A Footpath Diversion Application Under The Highways Act 1980?

The recent case of The Open Spaces Society v Secretary of State for Environment, Food & Rural Affairs [2021] EWCA Civ 241 has thrown light on the subject of what factors an inspector can take account of when considering a Footpath Diversion application under Section 119 of the Highways Act 1980.

Relevant UK laws

A diversion order diverts the public’s right of way to a new route and should be distinguished from a stopping up order, which extinguishes the public right to pass and repass.

There are various extinguishment and diversion powers conferred by statute. For example:

• Section 247 of the Town and Country Planning Act 1990 (TCPA) – This empowers the Secretary of State to authorise, by order, to stopping up or diversion of any highway, if satisfied, that it is necessary so to do in order to enable development to be carried out in accordance with planning permission or by a Government department. Hence, if planning permission is required for a new development, and the site is crossed by a highway, whether a road or a footpath, application can be made under Section 247. Section 257 of the TCPA provides local authorities with similar powers specifically in relation to footpaths, bridleways and restricted byways affected by development, taking effect by order of the authority itself, if the order is not opposed.
• Section 116 of the Highways Act 1980 (HA) – This involves an application to the Magistrates’ Court by the highway authority to authorise the stopping up or diversion of a highway. The application is a judicial process, requiring various notices to be given prior to the making of the application, and enabling persons aggrieved to be heard in Court. The Court is required to consider whether the highway is either “unnecessary” or can be “diverted so as to make it nearer or more commodious to the public”. These are tests that do not need to be satisfied under Sections 247 and 257 of the TCPA (above). The application is one that is made by the highway authority. However, under section 117 of the HA, any person who desires a highway to be stopped up or diverted may ask the authority to make the application, subject in most cases to a requirement to fund the costs of it.
• Section 118 of the HA – A local authority may make a “public path extinguishment order” in relation to a footpath, bridleway or restricted byway on the basis that it is expedient to do so on the ground that it is not needed for public use. The order, which must be confirmed by the Secretary of State, extinguishes the public’s right of way over the path.
• Section 119 of the HA – A local authority may make a “public path diversion order” in relation to a footpath, bridleway or restricted byway if “in the interests of the owner, lessee or occupier of land crossed by the path or way or of the public, it is expedient that the line of the path or way, or part of that line, should be diverted”. The order must be confirmed by the Secretary of State and operates to extinguish the original route and creates a new public right of way over the new route.

The Open Spaces Society v Secretary of State for Environment, Food & Rural Affairs

Case summary

This case reviewed Section 119 of the HA where the Court of Appeal decided that the Local Authority is not restricted to considering just the three factors specifically to be considered under Section 119:

But include the interests of the landowners, especially relating to their privacy.