Hertfordshire County Council v Secretary of State for the Department of Environment Food & Rural Affairs

When deciding whether to confirm a public path extinguishment order, the decision-maker must assess need and expediency within the statutory scheme. A path that remains in use cannot be treated as unnecessary merely because a replacement may arise at an uncertain future time. Under section 118(2), “apart from the order” means assuming that the extinguishment order was not made. A creation agreement conditional on that order therefore supplies no alternative route. The majority also held that a private agreement cannot be used with an extinguishment order to reroute existing paths while avoiding the safeguards and criteria in section 119 of the Highways Act 1980. Richards LJ added that unconditional future arrangements may be relevant, although uncertainty affects their weight.

Hertfordshire County Council made four public path extinguishment orders under section 118 of the Highways Act 1980 as part of a wider scheme to rationalise rights of way near St Albans. Agreements under section 25 provided for new paths, some of which were to be dedicated immediately before the related existing paths were extinguished.

An inspector confirmed one order but declined to confirm the three orders challenged in the appeal, holding that the proposed paths created by agreement could not be taken into account. Sullivan J dismissed the Council’s application for judicial review on 14 October 2005. The central issue before the Court of Appeal was whether section 118 permitted the agreements to be considered as alternatives to the paths proposed for extinguishment, and whether the Council’s scheme properly used section 118 rather than the statutory diversion procedure.

The appeal was dismissed. Wall and Richards LJJ formed the majority on the material statutory construction, while Ward LJ agreed with the result but disagreed with the majority’s broader view that creation agreements were generally excluded.

1. Under section 118(1) of the Highways Act 1980, the relevant position is assessed when the council makes and submits the extinguishment order. A path that is in use, and will remain in use unless replaced at an indeterminate future time, remains needed for public use.
2. Under section 118(2), “apart from the order” has its natural meaning. The decision-maker must assume that the extinguishment order was not made. The agreements in this case were conditional on the making of those orders. On that assumption they did not take effect and could not provide alternative paths when assessing likely public use or expediency.
3. The majority treated section 118(5) as a deliberate, limited provision permitting alternative paths to be considered where concurrent proceedings concern creation or diversion orders. Its omission of creation agreements was significant. Section 25 was intended for wholly new paths and could not be combined with section 118 to reroute existing paths while avoiding the public safeguards and criteria in section 119, including public participation, convenience and fitness for use.
4. Richards LJ qualified the reasoning by stating that likely future use may be affected by future events. An existing and unconditional creation agreement may therefore be considered, with uncertainty affecting the weight given to it. That qualification did not assist the Council because its agreements were conditional on the extinguishment orders.
5. Ward LJ considered that section 118(2) was broad enough to admit creation agreements and that section 118(5) did not impliedly exclude them. He nevertheless agreed that, when the orders were disregarded, the conditional agreements created no alternatives. The inspector was therefore entitled to refuse confirmation, and the judicial review challenge failed.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the dismissal of the judicial review claim.
2. Administrative Court, Queen’s Bench Division Sullivan J dismissed the Council’s application for judicial review on 14 October 2005.