Public path diversion orders: court confirms privacy and security can be considered

The Court of Appeal has confirmed that decision-makers may take into account factors beyond those set out in 119(6) of the Highways Act 1980

15 April 2021

In the recent case of Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2021] EWCA Civ 241, the Court of Appeal confirmed that when considering a public path diversion order, decision-makers are permitted to take into account considerations beyond those specified in section 119(6) of the Highways Act 1980 ('HA 1980'). We published an update focused on the High Court decision in June 2020, which can be found here.

Section 119(6) of the HA 1980 provides that decision makers must take into account the following before confirming a public path diversion order:

a) public enjoyment of the path as a whole;

b) land served by the existing public right of way;

c) other land.

In the High Court it was held that (in respect of the facts of the case) the inspector was legally entitled to consider other factors in addition to those set out above, and that these were not the sole or exclusive factors. Specifically, in the context of this case, a landowner’s interests including privacy and security could be considered. The question before the Court of Appeal was whether, by considering additional factors, the inspector had misinterpreted section 119(6) of the 1980 Act. The judgment handed down by the Court of Appeal has not deviated from the principle established in the High Court. The decision confirms that section 119, properly interpreted, requires consideration of paragraphs (a) to (c) but also permits the contemplation of any other relevant considerations when deciding whether it is expedient to confirm a public path diversion order.

The Court found that: 'A far more natural interpretation [of s.119(6)],which reflects the wording and structure of the section, is that Parliament intended to confer a broad discretion which required the decision-maker to take into account the effect of the order on certain specified matters, but also permitted the decision-maker to have regard to other factors that were considered relevant to the question of whether it was expedient to confirm the order.'

We provide landowners, developers and local authorities with legal advice on all aspects of highway planning and public rights of way. For further information please see our experience or contact Gary Soloman or Daniel Whittle.

Key contact

Gary Soloman

Gary Soloman Partner

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

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