Hargrave & Anor, R. (On the Application of) v Stroud District Council

Under section 119 of the Highways Act 1980, a council has discretion whether to make a public path diversion order, even where diversion appears expedient in the interests of the landowner or the public. That discretion continues after the order is made. Where objections remain, the council may decide not to submit the order to the Secretary of State.

The council may consider the statutory confirmation criteria when deciding whether to initiate or continue the process. Its decision is subject to ordinary public law controls, including rationality. A decision is not irrational merely because the opposite decision would also have been lawful where reasonable persons could differ.

The landowners sought to divert a public footpath running close to their house, relying on security and privacy concerns supported by a police letter. Stroud District Council made a diversion order under section 119 of the Highways Act 1980, but, after objections from the parish council and individuals, decided not to submit it to the Secretary of State for confirmation.

The Administrative Court, before Mr M Supperstone QC sitting as a Deputy High Court Judge, rejected the challenge. The landowners appealed, arguing that the council had been obliged to submit the order once made, or alternatively that its decision was perverse or irrational. The central issue was whether the statutory scheme gave the council discretion to stop the process after making the order.

1. Appeal dismissed. The council’s decision not to submit the opposed diversion order to the Secretary of State was lawful. The appeal was dismissed with costs, to be assessed if not agreed.
2. Section 119(1) of the Highways Act 1980 establishes a staged process. At the making stage, the council must be satisfied that diversion appears expedient in the interests of the owner or the public, but the word “may” confers a discretion whether to make the order. Fulfilment of that condition does not impose a duty to initiate the process.
3. That discretion is not exhausted when the order is made. The statutory scheme contains no express duty to publicise or submit an order in all circumstances. Although paragraph 1 of Schedule 6 uses “shall”, the notice is a condition precedent to confirmation if the authority wishes to proceed, rather than an obligation compelling continuation.
4. Where an objection remains, only the Secretary of State may confirm the order. The council nevertheless has power, and no duty, to submit it. The authority may reconsider its position in light of local reaction and may decline to impose an unsupported order on the Secretary of State’s process.
5. The decision was not perverse or irrational. The competing considerations included the appellants’ security and privacy concerns, the age and condition of the existing path, and the greater length of the proposed diversion. Both outcomes were open to a reasonable decision-maker, so the fact that one decision would not have been perverse did not make the opposite decision unlawful.
6. The arguments under Article 8 and Article 1 of the First Protocol to the European Convention on Human Rights added nothing. Neither provision required a different construction of the statute or rendered the council’s rational decision unlawful.
7. Lord Justice Buxton agreed with the leading judgment and emphasised the public-rights context, the burden of an elaborate statutory process, and the need for an authority to retain an open mind. He also stated that an irrationality or Convention challenge should be raised early and in sufficient detail. Lord Justice Longmore agreed with both judgments.

1. Court of Appeal (Civil Division) [2002] EWCA Civ 1281 — appeal dismissed with costs.
2. Administrative Court, Queen’s Bench Division — Mr M Supperstone QC, sitting as a Deputy High Court Judge, rejected the challenge to the council’s decision not to submit the diversion order.