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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2021] EWCA Civ 241 (25 February 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/241.html Cite as: [2021] WLR(D) 126, [2021] PTSR 1295, [2021] EWCA Civ 241 |
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ON APPEAL FROM THE ADMINISTRATIVE COURT (PLANNING COURT)
THE HONOURABLE MRS JUSTICE LIEVEN
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWIS
and
LADY JUSTICE ELISABETH LAING
____________________
THE ![]() ![]() ![]() ![]() |
Appellant |
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- and - |
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SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS |
Respondent |
____________________
Ned Westaway (instructed by the Government Legal Department) for the respondent.
Hearing date : 2 February 2021
____________________
Crown Copyright ©
Lord Justice Lewis:
Introduction
The Legal Framework
"(1) Where it appears to a council as respects a footpath, bridleway or restricted byway in their area (other than one that is a trunk road or a special road) that, 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 whether on to land of the same or of another owner, lessee or occupier, the council may, subject to subsection (2) below, by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order,—
(a) create, as from such date as may be specified in the order, any such new footpath, bridleway or restricted byway as appears to the council requisite for effecting the diversion, and
(b) extinguish, as from such date as may be specified in the order or determined in accordance with the provisions of subsection (3) below, the public right of way over so much of the path or way 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" .
(2) A public path diversion order shall not alter a point of termination of the path or way—
(a) if that point is not on a highway, or
(b) where it is on a highway otherwise than to another point which is on the same highway, or a highway connected with it, and which is substantially as convenient to the public.
(3) Where it appears to the council that work requires to be done to bring the new site of the footpath, bridleway or restricted byway into a fit condition for use by the public, the council shall—
(a) specify a date under subsection (1)(a) above, and
(b) provide that so much of the order as extinguishes in accordance with subsection (1)(b) above a public right of way is not to come into force until the local highway authority for the new path or way certify that the work has been carried out.
(4) A right of way created by a public path diversion order may be either unconditional or (whether or not the right of way extinguished by the order was subject to limitations or conditions of any description) subject to such limitations or conditions as may be specified in the order.
(5) Before determining to make a public path diversion order on the representations of an owner, lessee or occupier of land crossed by the path or way, the council may require him to enter into an agreement with them to defray, or to make such contribution as may be specified in the agreement towards,—
(a) any compensation which may become payable under section 28 above as applied by section 122(2) below, or
(b) where the council are the highway authority for the path or way in question, any expenses which they may incur in bringing the new site of the path or way into fit condition for use for the public, or
(c) where the council are not the highway authority, any expenses which may become recoverable from them by the highway authority under the provisions of section 27(2) above as applied by subsection (9) below.
(6) The Secretary of State shall not confirm a public path diversion order, and a 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 or way 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 or way as a whole,
(b) the coming into operation of the order would have as respects other land served by the existing public right of way, and
(c) any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it,
so, however, that for the purposes of paragraphs (b) and (c) above the Secretary of State or, as the case may be, the council shall take into account the provisions as to compensation referred to in subsection (5)(a) above.
(6A) The considerations to which—
(a) the Secretary of State is to have regard in determining whether or not to confirm a public path diversion order, and
(b) a council are to have regard in determining whether or not to confirm such an order as an unopposed order,
include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would create or extinguish a public right of way.
(7) A public path diversion order shall be in such form as may be prescribed by regulations made by the Secretary of State and shall contain a map, on such scale as may be so prescribed,—
(a) showing the existing site of so much of the line of the path or way as is to be diverted by the order and the new site to which it is to be diverted,
(b) indicating whether a new right of way is created by the order over the whole of the new site or whether some part of it is already comprised in a footpath, bridleway or restricted byway, and
(c) where some part of the new site is already so comprised, defining that part.
(8) Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path diversion orders.
(9) Section 27 above (making up of new footpaths, bridleways and restricted byways) applies to a footpath, bridleway or restricted byway created by a public path diversion order with the substitution, for references to a public path creation order, of references to a public path diversion order and, for references to section 26(2) above, of references to section 120(3) below."
The Factual Background
The decision of the inspector
"(a) the diversion to be effected by the Order is expedient in those interests;
(b) the new path will not be substantially less convenient to the public in consequence of the diversion;
(c) it is expedient to confirm the Order having regard to:
(i) the effect of the diversion on public enjoyment of the path as a whole; and
(ii) the effect the coming into operation of the Order would have with respect to other land served by the existing paths and the land over which the new path would be created together with any land held with it."
"44. I have concluded above that the Order is expedient in the interests of the landowners and occupiers on the grounds of privacy. The proposed route will not be substantially less convenient. There would be a diminution in public enjoyment, but this would not be significant in terms of the effect on the use of the path as a whole.
"45. The judgment in Young is authority that in deciding whether to confirm an order, the criteria in section 119(6) should be considered as three separate tests, two of which may be the subject of a balancing exercise. Where, as in this case, the proposed diversion is considered expedient in terms of test (i), is not substantially less convenient in terms of (ii), but would not be as enjoyable to the public, the inspector must balance the interests raised in the two expediency tests, i.e. the interests of the applicant (i), and the criteria set out in section 119(6)(a), (b) and (c) under (iii) to determine whether it would be expedient to confirm the Order.
"46. The [Open
![]()
Spaces
Society] invites me to take a contrary approach to the followed in Young . It submits that on a proper reading of section 119(6) if the diversion fails any one of tests comprised in section 119 then the diversion must fail. According to the [
Open
![]()
Spaces
Society] no balancing exercise should be undertaken.
"47. However, Young is settled law and I see no reason to depart from it. In this case, there is a relatively minor loss of public enjoyment of the path as a whole which must be weighed against the interests of the owners/occupiers. On balance, I consider that the benefits to the owners and occupiers outweigh the loss of public enjoyment. As such it would be expedient to confirm the Order."
The application to challenge the validity of the Order
The Issue and the Submissions
The Issue
The Submissions
Discussion and Conclusion
"the only criterion that section 110(2) lays down is whether it is "expedient" to confirm the order having regard to the extent to which it appears to the Secretary of State that the path would be likely to be used. It thus concentrates on user as being, at all events, the prime consideration. I agree, however, with the submission being made on behalf of the applicant that the word "expedient" must mean that, to some extent at all events, other considerations can be brought into play because, if that were not so, there would be no room for a judgment, which is bound to be of a broad character, as to whether or not it is "expedient"."
Secondly, earlier in his judgment, Phillips J. expressed the view, obiter, that there would be cases where a Secretary of State could confirm an order even if the path would be used to more than a minimal extent because it was not needed, for example, where an alternative path was available.
"28. [Counsel for the claimant's] submissions accepted, at least at some stage as I understood them, that the expediency issue in section 119(6) was not confined to the specific factors in sub-paragraphs (a) to (c), nor to the effect of compensation on the land onto which the path might be diverted. It could encompass the factors said to be unlawfully omitted in paragraph 70, and indeed the fact of historical integrity. 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. That is by clear contrast with the scope of expediency in section 119(1) which is directed to what is expedient for the interests of the land owner.
Although the decision is not binding upon us, I consider that Ouseley J. did correctly interpret section 119(6) of the Act.
Conclusion
Lady Justice Elisabeth Laing
Lady Justice King
Court of Appeal Ref: 2020/0836
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT (PLANNING COURT)
MRS JUSTICE LIEVEN
LADY JUSTICE KING
LORD JUSTICE LEWIS
LADY JUSTICE ELISABETH LAING
B E T W E E N:
Appellant
Respondent
UPON HEARING Leading and Junior Counsel for the Appellant, and Counsel for the Respondent
IT IS ORDERED THAT:
25 February 2021.