Hertfordshire County Council, R (on the application of) v Department of Environment Food & Rural Affairs

Section 118 of the Highways Act 1980 concerns paths that are presently not needed for public use, not paths that remain needed but are intended to be rerouted under a creation agreement. A decision-maker confirming an extinguishment order must consider the position as it exists when the order is made and confirmed. Possible future diversions or additions to the rights-of-way network cannot generally be taken into account. The limited exception in section 118(5) applies where concurrent confirmation proceedings concern submitted creation or diversion orders, enabling the decision-maker to ensure that the alternative route and extinguishment take effect together. Using a section 25 agreement with section 118 to achieve what is in substance a diversion would bypass statutory safeguards and is impermissible.

The claimant sought judicial review of an Inspector’s refusal to confirm three public path extinguishment orders made under section 118 of the Highways Act 1980. The orders formed part of a wider agreement under section 25 providing for replacement and additional paths. The Inspector declined to take the proposed routes into account because they were not yet public rights of way. The parties agreed that the decision would stand if that approach was legally correct, but would have to be quashed if the agreement could lawfully be considered. The central issue was the proper interpretation of section 118 in the context of sections 25, 26 and 119.

1. Application dismissed. The Inspector was correct not to take the routes proposed in the section 25 agreement into account when deciding whether to confirm orders A, B and D.
2. Section 118 distinguishes between a path that is not needed, dealt with by extinguishment, and a path that remains needed but should be rerouted, dealt with by diversion under section 119. The claimant’s scheme concerned paths that were still needed and therefore sought to use section 118 to achieve what was in substance a diversion.
3. The tests in section 118(1) and (2) are distinct. The first concerns whether the path is not needed; the second concerns the extent to which it would be likely to be used apart from the order. In many cases the evidence relevant to each test will overlap, and in this case the Inspector had expressly considered likely use.
4. Section 118 must be read as a whole. Subsections (1) and (2) concern the position existing when the order is made and confirmed. Subject to subsection (5), the decision-maker cannot consider possible or probable future diversions or additions to the rights-of-way network.
5. Section 118(5) creates a limited exception. It applies only where alternative paths are provided by submitted creation or diversion orders and the confirmation proceedings are concurrent, so that the orders can be considered together and brought into effect contemporaneously.
6. A section 25 agreement lacks the public participation and independent scrutiny safeguards attached to orders under sections 26 and 119. Using an agreement alongside section 118 to reroute an existing path would also avoid the safeguards in section 119, including requirements concerning convenience, termination points, fitness for public use and public enjoyment.
7. New additions to the network could be pursued under section 26, while genuine diversions should be pursued under section 119. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.