Ramblers Association, R (on the application of) v Secretary of State for Defence

Under sections 16 and 17 of the Defence Act 1842, a power to stop up or divert a public path must be exercised for defence-of-the-realm purposes. The replacement duty is mandatory: the defendant must provide and make another path or road in lieu, at public expense. Merely identifying an existing route is insufficient. Existing highways may form part of the replacement, and a replacement may be longer or shorter than the stopped-up route. A footpath may be replaced by a bridleway or full highway because the public right of passage is enlarged, but a bridleway may not be replaced by a footpath. The section 16 power is not confined to land acquired under that section, although that issue was academic to the result.

The claimant sought judicial review of the defendant’s decision to stop up Mildenhall Footpath No 28 in Suffolk under sections 16 and 17 of the Defence Act 1842. The proposed replacement route ran entirely along existing public highways. The claimant argued that section 16 applied only to paths on land being acquired under that section and that section 17 required a newly provided path of equivalent character, rather than an existing highway route.

The central issues were the scope of the stopping-up power and the meaning of the duty to provide and make another path or road in lieu.

1. Outcome. The claim succeeded on ground two. The stopping up was declared unlawful, and the decision contained in the notice dated 5 September 2005 was quashed. The order was stayed pending expiry of the appeal period or determination of any appeal. Permission to appeal was granted. The claimant received 50 per cent of its costs, subject to detailed assessment.
2. Section 17. The duty to provide and make another path or road in lieu is expressed in mandatory terms. It is not discharged by telling the public that an alternative route exists on the highway network. The defendant must provide and make a replacement at the expense of the ordnance department.
3. The existing highway network may be used as part of the replacement route. Section 17 does not require the replacement to preserve the same total length of path or prevent any reduction in the extent of the public path network. A replacement may be longer or shorter if it provides a reasonably convenient route between the relevant points.
4. A highway carrying vehicular traffic may form part of a replacement for a footpath or bridleway. Applying the description of highway rights in Suffolk County Council v Mason [1979] AC 705, the greater includes the less. A bridleway or full highway therefore may replace a footpath, but a footpath cannot lawfully replace a bridleway.
5. Section 16. The stopping-up power is not freestanding in the sense that it may be used for purposes unrelated to defence of the realm. However, it is not confined to land being acquired or previously acquired under section 16. The word “any” was given its ordinary meaning, supported by the statutory protection in section 17 and the wide powers recognised in Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508. This issue was academic because the decision was unlawful under section 17.