England and Wales High Court (Administrative Court) Decisions

(1) Where it appears to a council as respects a footpath or bridleway in their area (other than one which is a trunk road or a special road) that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the path or way.

An order under this section is referred to in this Act as a “public path extinguishment order”.

(2) The Secretary of State shall not confirm a public path extinguishment 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 it is expedient so to do having regard to the extent (if any) to which it appears to him or, as the case may be, them that the path or way would, apart from the order, be likely to be used by the public, and having regard to the effect which the extinguishment of the right of way would have as respects land served by the path or way, account being taken of the provisions as to compensation contained in Section 28 above as applied by Section 121(2) below.

(4) Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path extinguishment orders.

119 Diversion of footpaths and bridleways

(1) Where it appears to a council as respects a footpath or bridle way 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 onto 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 or bridleway as appears to the council requisite for effecting the diversion, and

(b) extinguish, as from such date as may be so specified 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.

(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 121(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 by 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 sub-section (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.

(8) Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path diversion orders.

120 Exercise of powers of making public path extinguishment and diversion orders

(3) Where it appears to the Secretary of State as respects a footpath or bridleway that it is expedient as mentioned in Section 118(1) ... above that the path or way should be stopped up ..., or where an owner, lessee or occupier of land crossed by a footpath or bridleway satisfies the Secretary of State that a diversion of it is expedient as mentioned in Section 119(1) above, then if -

(a) no council having power to do so have made and submitted to him a public path extinguishment order ... or a public path diversion order, as the case may be, and

(b) the Secretary of State is satisfied that, if such an order were made and submitted to him, he would have power to confirm the order in accordance with the provisions in that behalf of Sections 118 (and 119) above,

he may himself make the order after consultation ... with the appropriate authority.”

THE ISSUES

(1) Whether this application should be refused because it has not been brought promptly under CPR 54.5(1)(a).

(2) Whether, once a diversion order has been made by a Council under Section 119(1) of the 1980 Act and it appears to the Council that in the interests of the owners of the land crossed by the path it is expedient that the line of the path be diverted, the Council is then under a duty to refer it to the Secretary of State for confirmation, or whether it has a discretion not so to refer it.

(3) If and insofar as a Council has a discretion not to refer it, how that discretion should be exercised, and how it should have been exercised in the present case.

Issue (1): Delay

Issue (2): Duty or discretion

(i) A diversion order under Section 119 is the subject of two separate and distinct statutory tests, to be applied by separate statutory bodies, although there is overlap if the order is unopposed. These may be described as “the order-making test”, on the one hand and “the confirmatory test”, on the other.

(ii) The test the Council had to apply when considering the Second Claimant’s application was the order-making test: whether it appeared to the Council that in her interests as owner of the land crossed by the path, it was expedient that the line be diverted (S 119(1)).

(iii) Parliament did not intend to burden the order-making authority with any greater or more extensive considerations than those set out in Section 119(1). The Council, in considering whether to make an order, should not give consideration to any of the elements of the confirmatory test set out in Section 119(6). They only arise at the stage of confirmation.

(iv) Once the Council has made a diversion order it must (save perhaps in exceptional circumstances which do not arise in the present case) submit the order to the Secretary of State for confirmation. The existence of objections is no ground for not so doing. Exceptional circumstances might be if a change of circumstances occurred after the making of the order which made it no longer appear to the Council expedient in the owners’ interests to make the diversion.

“... Since there is no statutory requirement that opposed orders must be sent to the Secretary of State, authorities appear to have the discretion not to proceed. However, because the statutes do not authorise the withdrawal of orders, a formal resolution by the authority not to proceed is considered to be necessary to bring the procedure to an end ...”

“(1) An order shall be made in duplicate and, where the order is submitted to the Secretary of State for confirmation, the order and duplicate shall be sent to him accompanied by:

(a) two copies of the order,

(b) a copy of the notice given before submission as required by Schedule 6 to the Act,

(c) a statement of the grounds on which the authority consider that the order should be confirmed,

(d) any representations or objections duly made with respect to the order and not withdrawn, together with any observations on them of the authority, and

(e) in any case in which the authority is required to obtain the consent of, or to consult with, any other authority or body before the order is made, a certificate by the authority that such consent has been obtained or such consultation has taken place together with a statement of the nature and the effect of such consultation.”

“If, in the light of opposition, the authority decide not to proceed then there is no obligation to forward the opposed order to the Secretary of State.”

The Rights of Way Law Review is similarly of the view that the authority has a discretion not to refer an order to the Secretary of State where there are objections. (S.7 Annexe, S.119 HA 1980, April 1997, page 6, Step 12).

“If any representation or objection duly made is not withdrawn the authority shall submit the order to the Secretary of State for confirmation by him.”

Mr Edwards properly contrasts the use of the word “shall” in this legislation with the use of the word “may” in Section 119(1) of the 1980 Act.

“The Secretary of State’s powers are not intended to provide an alternative to those held locally nor are they intended to operate as an appeals system against the decision of the local authority.”

A decision of a Council not to submit to the Secretary of State an order made under Section 119(1) may be challenged by way of judicial review.

“The Defendant’s failure to consider the human rights implications of the decision not to refer the order to the Secretary of State, despite an officer’s recommendation to do so, amounts to a violation of the Claimant’s human rights, as does the decision itself.”

The Claimants contend that the Council has acted in breach of Articles 6.1, 8 and Article 1 to Protocol 1 of the European Convention on Human Rights.

Issue (3): Parameters and exercise of discetion

The parameters of the discretion

(i) The sub-section is triggered where it appears to a council that on the facts of a case such as the present it is expedient in the interests of the owner that the path be diverted. This is a low threshold

(ii) Once the Council’s powers are engaged the word “may” suggests that it has a very broad discretion. All factors relevant to the exercise of the discretion may be taken into account.

In the present case we are only concerned with the stage when the Council takes the decision whether or not to refer the order to the Secretary of State. However in my view Section 119(1) operates in the same way at the prior order-making stage.

“Although these tests are, according to the Act, to be applied only at the confirmation stage, it would clearly be nonsensical for a council not to take them into account before deciding whether to make the order in the first place. It is submitted that, therefore, diversion orders should seek to ensure a balance between, on the one hand, the interests of the public, as users and on the other, the interests of the owner, lessee or occupier of the land.” (page 166).

In, Rights of Way Law Review (see above), in a section considering whether the proposal to make the order passes the tests required by the 1980 Act, it is stated

“S.119(6) provides that before confirming the Order the Secretary of State or the authority, as the case may be, shall consider whether the diversion is expedient ... and in addition should be satisfied that the new path “will not be substantially less convenient to the public”. However, it is recommended that both these tests are considered by the authority when deciding whether to make the Order, or not. This will prevent waste of time and money if the test fails at the confirmation stage.” (Page 12)

“...It is no business of the council to consider is it, the balance between the public and the owner, unless the council is thinking of confirming it as an unopposed order, otherwise, the council has a duty to make the order and then it is for the Secretary of State to consider whether it should be confirmed by him and, at that stage, there comes in the question of an inquiry or whatever, if there is opposition?” (p.3 E-F; see also p.3 G - p.4 B and p.4 E-F).

Mr Birts also relies upon passages in the judgment of Ognall J in R v Bath City Council ex p. Master Co. Brethren where there are similar comments in the context of the operation of Section 118 of the 1980 Act. The Learned Judge concluded:

“... that the Respondents effectively adopted the role of the Secretary of State, as conferred upon him under S 118(2) of the Act, but without the safeguards consequent upon his duty to invite, to receive and to consider representations from all persons or bodies, whether by local enquiry or otherwise, before deciding whether to confirm the Extinguishment Order. In my judgment to do so was to misdirect themselves as to the true scope of their duty.” (para 33).

Exercise of discretion

“The report of the Director of Corporate Services ... was received.

A Ward Councillor spoke against the proposed footpath diversion. She advised that the current route was an ancient footpath and track which was clearly shown on old maps and the proposed diversion was a longer and more muddy route. Although she sympathised with the owners she emphasised that they were aware of the existence of the footpath when they purchased the house. She was concerned that diversion of this footpath could set a dangerous precedent.

Resolved:

That the application for the proposed footpath diversion of MPA 95 at Trench hill, Painswick not be referred to the Secretary of State for Environment, Transport and the Regions.”

SUMMARY

THE DEPUTY JUDGE: For the reasons set out in my draft judgment this application fails.PRIVATE 

MR EDWARDS: Most obliged, my Lord. That leaves the question of costs.

THE DEPUTY JUDGE: Yes.

MR EDWARDS: In my submission, this is an appropriate case for summary assessment and I understand my learned friend agrees. I hope that a schedule of costs has been provided to your Lordship.

THE DEPUTY JUDGE: Yes, that has been provided and I have seen it. There should be some deduction, Mr Edwards, should there not, for the costs incurred on the delay issue before you abandoned it?

MR EDWARDS: Yes, my Lord. I accept the matter was abandoned and perhaps it is a matter for my learned friend as to what the deduction should be.

THE DEPUTY JUDGE: Most certainly.

MR EDWARDS: My Lord, can I just mention two detailed matters on the schedule, my Lord, I think I need to deal with for assessment.

THE DEPUTY JUDGE: Certainly.

MR EDWARDS: The first, my Lord, is on the second page of the schedule.

THE DEPUTY JUDGE: Yes.

MR EDWARDS: My Lord, on the second page of the schedule the second heading is "Agent's fees".

THE DEPUTY JUDGE: Yes, I have it.

MR EDWARDS: You will see at the bottom of that entry there is a reference to two hours at £100 an hour. We do not anticipate this hearing taking two hours.

THE DEPUTY JUDGE: I think not.

MR EDWARDS: So we would ask that your Lordship reduces that to one hour, so the total will be £100.

THE DEPUTY JUDGE: Certainly. So the grand total, reduced accordingly to £5,846.

MR EDWARDS: My Lord, there is a second point. Your Lordship will see that there is a claim made in respect of VAT. I have discussed the matter with Mr Birts, and generally speaking, the local authorities can claim VAT back through their own channels with the Customs and Excise. I have not been able to take valid instructions about removing that entry, but what we would ask your Lordship to do is to exercise the power to make that conditional on the local authority to providing a certificate stating whether or not they can recover it through the usual channels.

THE DEPUTY JUDGE: So what is the precise form of order that you are seeking?

MR EDWARDS: My Lord, the order that we are seeking is that the payment of VAT elements of the costs be conditional upon the defendants filing a certificate regarding recoverability within seven days of this judgment. I take that form of wording directly from Butterworths on costs.

THE DEPUTY JUDGE: Yes.

MR EDWARDS: My Lord, that is the position.

THE DEPUTY JUDGE: Thank you very much. Mr Birts, in principle?

MR BIRTS QC: My Lord, in principle, yes, we agree. We agree with all those points. On the delay, my Lord, I am grateful to your Lordship, we would submit that it would be fair to deduct 25 per cent off the bill for the issue of delay which did occupy quite a lot of argument on paper and preparation.

THE DEPUTY JUDGE: Argument on paper, but not in court.

MR BIRTS QC: Not in court, no.

THE DEPUTY JUDGE: Part of the skeleton argument.

MR BIRTS QC: Yes. My Lord, it was in the original opposition, if you remember. It was raised right at the start by Turner J. It was taken up by my learned friends in their acknowledgment of service, well actually they raised it first in the acknowledgment of service, Turner J took it up. It was then continued through the paper process and was dealt with fairly extensively in the skeleton arguments and in the additional arguments, if my Lord will remember.

THE DEPUTY JUDGE: Yes.

MR BIRTS QC: But it is quite right it was abandoned on Friday afternoon and my friend telephoned me and let the court know it was abandoned. But until then it was occupying a fairly prominent position and caused us quite a lot of concern, obviously, and work. So we would ask for some deduction. I ask for 25 per cent, if your Lordship has other ideas or my friend has other ideas, perhaps I could be heard on them if they are against 25 per cent.

THE DEPUTY JUDGE: Certainly. Mr Edwards?

MR EDWARDS: No, Mr Lord. I do not dispute that.

THE DEPUTY JUDGE: You do not.

MR EDWARDS: We are content for the deduction of 25 per cent.

THE DEPUTY JUDGE: I wonder whether someone could do the maths on the sum and then I can state the sum.

MR BIRTS QC: Yes, my Lord, there are other applications.

THE DEPUTY JUDGE: Certainly. Can you agree the figure on costs? Perhaps you can be, or your instructing solicitor, can be working on that.

MR EDWARDS: Of course, my Lord.

THE DEPUTY JUDGE: Yes.

MR BIRTS QC: My Lord, while I am making applications perhaps that can be done. Your Lordship heard, and stated in your Lordship's judgment, that this was a point, is a point, of considerable general importance. It has countrywide impact so far as these applications for diversion and extinguishment are concerned. It is a point which has exercised a lot of people over a lot of time and your Lordship may think from the length of your judgment that there are good arguments on both sides. We would ask for permission to appeal. It is an enormously important point and, with respect, if that is the statute's interpretation, which we would say has a very significant effect on the shift of the responsibility from the Secretary of State to the local authority level in deciding these applications then really it ought to be authoritatively either upheld or otherwise looked at by the Court of Appeal. We would ask your Lordship for permission to appeal.

THE DEPUTY JUDGE: No, Mr Birts. I accept this case raises an important point, however, in my view the construction of the relevant section is clear and, therefore, I refuse leave.

MR EDWARDS: My Lord, my instructing solicitor has calculated the sum with the 25 per cent reduction, the total will be £4,384.50.

THE DEPUTY JUDGE: Mr Birts, you have been on your feet, but does that look right?

MR BIRTS QC: My Lord, I do not know. I am sorry. If it has been checked, if it is wrong then no doubt----

THE DEPUTY JUDGE: Then that can be amended.

MR EDWARDS: It has been done on a calculator.

MR BIRTS QC: Sorry, how much it is?

MR EDWARDS: £4,384.50.

MR BIRTS QC: Including VAT?

MR EDWARDS: That is including VAT.

MR BIRTS QC: My Lord, may I have an extension of time? May I have a stay on that sum for 28 days to allow me to make an application for permission to the Court of Appeal?

THE DEPUTY JUDGE: So you are asking for a stay in relation to that sum?

MR BIRTS QC: In relation to the costs because under the new rules they are payable within 14 days unless you ask for a stay.

THE DEPUTY JUDGE: Yes. Mr Edwards?

MR EDWARDS: We do not dispute that.

THE DEPUTY JUDGE: Well, I order the defendants to have their costs in the sum of £4,384.50; there to be a stay of 28 days; and payment of the VAT element of costs to be conditional on the filing of a certificate of recoverability within seven days of judgment. Thank you both very much.

MR BIRTS QC: I am obliged.

THE DEPUTY JUDGE: Mr Edwards, I should have said thank you very much for pointing out the minor amendments and the draft will be amended accordingly.