Ashbrook, R (on the application of) v East Sussex County Council

A highway authority with a discretion to submit an opposed public path diversion order must apply its published guidance lawfully. Under paragraph 6(a), whether removing an obstruction is “reasonably achievable” requires a broad assessment of all relevant circumstances, including legal routes, cost, alternative arrangements and the parties’ interests. Deliberate obstruction and persistent defiance of enforcement notices or court orders are material, potentially important considerations. They do not compel a particular outcome, but the authority must weigh them. Failure to do so defeats the legitimate expectation created by the guidance and makes the decision unlawful. Paragraph 6(b) requires a safe alternative route during the interim period before any diverted path is completed, although the court did not decide whether that requirement was factually satisfied.

A public footpath had been deliberately obstructed by a barn and other structures. The highway authority served removal notices under the Highways Act 1980, but the landowners applied for a diversion. The authority made a diversion order under section 119, received objections and submitted the order to the Secretary of State for confirmation.

The claimant challenged the submission decision, relying on a published Council guidance note and legitimate expectation. Grigson J dismissed the claim. The appeal concerned whether the Council had properly applied paragraph 6(a), whether a safe alternative route was required under paragraph 6(b), and whether the decision should be quashed and remitted.

The appeal was unanimously allowed. The decision to submit the diversion order to the Secretary of State was quashed, and the question whether to submit it was remitted to the Council for fresh consideration.

1. Discretion. The Council retained a discretion whether to submit an opposed public path diversion order. Making the order did not itself require submission. The relevant issue was whether that discretion had been exercised consistently with the Council’s published guidance and the legitimate expectation arising from it.
2. Guideline 6(a). Schiemann and Dyson LJJ held that “reasonably achievable” had a broad meaning. The inquiry was whether, in all the circumstances, it was reasonable to require removal before the diversion application was considered. Relevant matters included engineering feasibility, cost, the prospect of confirmation, the degree of public use, alternative routes around the area, legal enforcement routes, and the interests of the public, Council and landowner. The weight given to those matters was for the Council.
3. Deliberate defiance. The deliberate creation and continued maintenance of the obstructions, together with refusal to comply with section 143 notices and Magistrates’ Court removal orders under section 137ZA of the Highways Act 1980, were material and important considerations. The Council could conclude that removal was not reasonably achievable, but it could not treat those matters as irrelevant. Arden LJ stressed that the statutory enforcement power and the Magistrates’ orders had to inform the decision. Dyson LJ stated that calculated and flagrant defiance should carry considerable weight.
4. Guideline 6(b). The safe alternative route had to be available during the interim period between the application and completion of works on any new path after confirmation. The court did not determine whether that factual requirement was satisfied because the decision was quashed on the paragraph 6(a) issue.

1. Court of Appeal (Civil Division) — [2002] EWCA Civ 1701 : appeal allowed; the submission decision was quashed and the matter remitted to the Council.
2. Queen’s Bench Division, Administrative Court and Divisional Court — Grigson J dismissed the judicial review claim. The lower court citation was not stated in the judgment.