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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hargrave & Anor, R. (On the Application of) v Stroud District Council  EWCA Civ 1281 (22 July 2002)
Cite as:  1 P&CR 1,  JPL 351,  EWCA Civ 1281
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR M SUPPERSTONE QC, sitting as a Deputy High Court Judge)
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LONGMORE
|THE QUEEN ON THE APPLICATION HARGRAVE AND HARGRAVE||Appellants|
|- v -|
|STROUD DISTRICT COUNCIL||Defendant|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR D EDWARDS (instructed by Giles Pink, Gloucestershire GL5 4UB London SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
Monday, 22nd July 2002
"(1) Where it appears to a council as respects a footpath... that, in the interests of the owner... of land crossed by the path... or of the public, it is expedient that the line of the path... should be diverted... the council may... by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order
(a) create... any such new footpath as appears to the council requisite for effecting the diversion, and
(b) extinguish... the public right of way over so much of the path as appears to the council requisite as aforesaid.
An order under this section is referred to in this Act as a 'public path diversion order'.
(6) The Secretary of State shall not confirm a public path diversion order, and the 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... 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...
(b) the coming into operation of the order would have as respects other land served by the existing public rights of way..."
- then there is a third matter.
"Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path diversion orders."
"Before... a public path diversion order is submitted to the Secretary of State for confirmation or confirmed as an unopposed order, the authority by whom the order was made shall give notice in the prescribed form..."
"If any... objection... is not withdrawn... the Secretary of State shall, before confirming... the order... either
(a) cause a local inquiry to be held, or
(b) afford to any person by whom any... objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by him for the purpose, and... may... confirm... the order... with or without modifications."
"Further or in the alternative, the Claimants contend that the decision taken by the Defendant, which so adversely affects the Claimants' rights, lacks the appearance of a decision fairly taken. Such an approach by the Defendant was not in accordance with natural judgment."
"Insofar as the Council has a discretion not to refer the order the claimants submit that it exercised it wrongly and unfairly and irrationally in this case."
- with no further particulars given.
"Mr Birts made no detailed submissions to the effect that if he was wrong about the scope of the discretion the Council acted irrationally in refusing to refer the diversion order to the Secretary of State. I reject the Claimants' challenge to the decision of the Council not to refer on grounds that it was perverse or in some respect contrary to Wednesbury principles."