In the recent case of The Open Spaces Society v Secretary of State for Environment, Food & Rural Affairs, the Court of Appeal considered the legitimacy of a footpath diversion order under Section 119 of the Highways Act 1980 (the Act).
Relevant law to the case
Section 119 allows for a local authority to make an order which diverts the line of a public footpath, bridleway or restricted byway in:
“…the interests of the owner, lessee or occupier of land crossed by the path or way or of the public.”
When a local authority makes an order, there may potentially be objections to it. In such circumstances, an inspector is appointed by the Secretary of State for Environment, Food and Rural Affairs, who decides whether to confirm the order. To do so, the inspector must be satisfied that the order meets three tests as specified under Section 119(6) of the Act, which are:
- Test one – the order would be in the interests of the owner;
- Test two – the new, diverted footpath would be ‘substantially less convenient to the public’ than the pre-existing footpath; and
- Test three – that ‘it is expedient to confirm the order having regard to the effect which’ the diversion will have on the public use of the footpath and on certain surrounding land.
The Open Spaces Society v Secretary of State for Environment, Food & Rural Affairs
This case involved a public footpath, which partly ran through the garden of a large house, which allowed walkers a view of the house (views of an upper storey bedroom and a terrace and croquet lawn). The property was of historical interest and part of it was Grade II listed.
The owner of the land, who has a high media profile, made an application to the local authority which sought to divert a 228-metre section of the footpath (which overall covered 3,225 metres) so that it was further away from the garden of the house and would also provide greater privacy and security. The local authority granted the diversion order. However, The Open Spaces Society (a group that works to protect public rights of way and open spaces in the UK) objected to the order.
As a result, an inspector was appointed by the Secretary of State for Environment, Food and Rural Affairs to decide whether the order could be confirmed. The inspector granted the order based upon the following:
- Test one – the diversion would be in the interests of the landowner as it would provide them with greater privacy and security.
- Test two – the new path created by the order would not be ‘substantially less convenient to the public’ than the existing path.
- Test three – when applying this criteria to decide where to confirm the order, the inspector took into account not only the three tests specified under Section 119(6) of the Act but also took into account, again (at both test one and test three stages), the interests of the owner of the land in diverting the footpath.
The Open Spaces Society challenged this decision on the basis that the inspector had not correctly applied the tests for diversion under Section 119(6) of the Act and was not entitled to take into account other factors, such as the interests of the landowner.
Court of Appeal decision
The Court of Appeal dismissed The Open Spaces Society’s challenge, upholding the High Court’s earlier ruling in this case, and confirmed the diversion order.
The Court of Appeal ruled that whilst Section 119(6) of the Act clearly indicated that the effect of the order on the three test stages must be taken into account in deciding on the question of expediency, it did not indicate that other relevant factors could not also be taken into consideration.
When deciding whether to grant a diversion order, were an inspector purely limited to the three test stages, on the facts of this case, this would result in a decision based solely on the basis that the path diversion was short, it had no effect on other land, and had only a small impact on the enjoyment of the public. It could not have been intended that expediency at the test three-stage was to be determined based only by reference to that relatively minor impact without also considering the landowner’s own interests (their privacy and security).
Section 119(6) of the Act was intended to interpret a wide discretion which required a local authority or inspector to take into account the impact of a diversion on certain matters but also allows them to have consideration of other factors, considered relevant to the question of whether they could confirm the order.