High Court provides new guidance on orders made under s119 of the Highways Act 1980

Useful new interpretative guidance on s119 of the Highways Act has been given by the High Court in the case of The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs

04 June 2020

An introduction to Public Path Diversion Orders

Section 119 of the Highways Act 1980 gives a ‘relevant order-making authority’ (in practice, most of such orders are made by district and borough councils following an informal consultation process) the discretionary power to make what is known as a ‘public path diversion order’. This is the form of legal order required to divert the existing route of a ‘public path’, which can take the form of a footpath, bridleway or a restricted byway.

Once made, a public path diversion order must then be confirmed before it can become operative. This is either done by the order-making authority itself, or (if there are unresolved objections from third parties to the order) by the Secretary of State. If the order is confirmed, the authority must then modify the definitive map and statement to reflect these changes to the public path, and send a copy of the confirmed order to Ordnance Survey to enable their maps to also be updated.

The Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1085 Admin (05 May 2020)

The case considered by this update involved a public path diversion order which was challenged by the Open Spaces Society after the order had been ‘confirmed’ by an Inspector (acting on behalf of the Secretary of State). The challenge was made on the grounds that the Inspector had not correctly followed the necessary criteria when deciding to confirm the order. The decision is useful as it sheds light for those interested in s119 applications (either those who may intend to make an application for a diversion or wish to object to a diversion being made) on the approach which is taken to such applications and what factors will be taken into account in confirming these orders.

Case background

This case concerned a decision dated 31 October 2019 of an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs to confirm a diversion order and definitive map modification order (the 'Order') which had originally been made by Oxfordshire County Council (the 'Council').

The Order was made by the Council on 28 May 2015 under section 119 of the Highways Act 1980 ('HA 1980') and section 53A (2) of the Wildlife and Countryside Act 1981 to modify the definitive map and statement for Oxfordshire by diverting 228m of the public footpath known as ‘Rollright Footpath’. This footpath runs through the garden of a farmhouse, with the owners of this farmhouse seeking to divert the footpath away from the house and its garden in order better to preserve both privacy and security.

The Open Spaces Society (the 'Claimant'), challenged the decision of the Inspector on the grounds that they had misinterpreted s.119 HA 1980.

s119 (6) HA 1980

This sub-section provides for the confirmation of orders where it is 'expedient… having regard to the effect which' the order will have on:

a) public enjoyment of the path as a whole
b) land served by the existing public right of way
c) other land.

This expediency test was referred to as ‘test 3’ in the judgment, with earlier provisions in section 119 HA 1980 forming ‘tests 1 and 2’.

The Claimant submitted that these factors (a) (b) and (c) are the only matters that can be taken into account in this ‘test 3’ and that the Inspector therefore erred in law by taking the benefit to the landowner of the diversion into account at this stage. It was submitted by the Claimant that this factor should only be considered under the earlier ‘test 1’.

In giving the judgment, the High Court considered previous case law, and held that factors (a) (b) and (c) in section 119 (6) of the 1980 Act are not in fact exclusive of other potential factors. The High Court considered that the statutory language of ‘expedient’ in section 119 HA 1980 suggested a broad balance or judgement approach was appropriate on confirmation of the Order, and that there was ‘nothing in the words of the provision that supports the Claimant’s argument that (a) to (c) are limited to matters which tend against confirmation of the Order’ [para 44 of the judgment]. Furthermore, the Court held [para 45 of the judgment] that any other approach 'would involve… obviously relevant factors being made legally irrelevant’.

The Decision

Applying this broad approach in dismissing the legal challenge against the confirmation of the Order, the High Court held that the Inspector was legally entitled to have had regard to the landowner’s interests when considering ‘test 3’ to confirm the order under s119 (6) HA 1980.

The High Court did however support the Claimant’s submission that the earlier case of R (Young) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 844 did not include a finding that this ‘test 3’ also includes a ‘balancing exercise’, and that Pins Advice Note 9 (Rights of Way) and the Inspector’s Decision Letter both therefore perhaps overstates the reliance on Young for the purposes of conducting ‘test 3’.

Commentary

The decision follows the authority of the High Court in Ramblers’ Association v SSEFRA [2012] EWHC 3333 (Admin), and is a helpful judgment for decision-makers, clarifying that they can lawfully take into account a wide range of factors, such as the landowner’s interests, agriculture and forest and biodiversity and public convenience matters when carrying out this ‘test 3’ in s119 (6) HA 1980. It is also of interest for those who may intend to make or object to Public Path Diversion Orders.

It is also possible that the finding of the High Court on the Young case may lead to new guidance being issued by PINS for inspectors on Rights of Way which removes references to the decision under s119 being a ‘balancing exercise’. 

Further changes

For further information on the above please contact Gary Soloman or Alex Minhinick.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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