Connaughton, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs & Anor

On an application for permission to appeal in judicial review proceedings, arguability of some grounds does not justify permission where an independent issue necessary to the challenge presents no serious argument on the merits. An alleged error in identifying a diversion’s termination point does not necessarily infect findings on public convenience and enjoyment where the inspector considered those issues separately, applied the distinct statutory test, and assessed the path as a whole.

A footpath crossing the applicant’s property was the subject of a Footpath Diversion Order made by Dorset County Council in December 2004. Following a public local inquiry, an inspector appointed under the Highways Act 1980 declined to confirm the order on 4 August 2006.

The applicant sought judicial review on four grounds, alleging errors concerning the termination point, natural justice, public convenience and public enjoyment. Walker J refused permission to apply for judicial review on 19 June 2007. He considered the first three grounds arguable but held that the fourth disclosed no serious argument on the merits. The central issue was whether the alleged earlier errors infected the inspector’s final conclusions.

Application refused. The Court of Appeal found no ground for concluding that Walker J had been wrong.

1. Although the first three grounds were treated below as arguable, the applicant still had to overcome the separate fourth hurdle concerning the inspector’s general conclusions on convenience to the public and the detrimental effect on public enjoyment of the path.
2. The inspector had found that the proposed diversion altered the termination point to point F and that this was less convenient than point A. That finding differed from the issue whether the termination point was point I. She nevertheless went on to consider independently whether the diversion would be substantially less convenient to the public.
3. That separate assessment considered the additional length, the substantial use of roads, additional stiles, the exit at point F, loss of continuation from point E, the need at times to avoid a football pitch, and the loss of views. The inspector concluded that the diversion would have a detrimental effect on public enjoyment of the path as a whole.
4. The inspector expressly distinguished these conclusions from the termination-point issue. Her decision showed that she considered convenience and enjoyment regardless of that issue and applied a different test to a different circumstance. The alleged errors therefore did not provide a serious basis for challenging the final conclusions or for granting permission to appeal.
5. An adjournment was also refused. The court considered that speed was important in judicial review proceedings, that the papers were sufficient, and that further delay after counsel’s withdrawal was not required in the interests of justice.

Highways Act 1980, section 119(2), supplied the statutory context for the termination-point issue, but the application was resolved on the separate merits hurdle.

• Court of Appeal (Civil Division)—[2007] EWCA Civ 1293: refused the application for permission to appeal.
• Administrative Court, Queen’s Bench Division—Walker J, 19 June 2007: refused permission to apply for judicial review of the inspector’s decision.