MJI (Farming) Ltd, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

When a public path creation order is made under Highways Act 1980, the statutory tests of need and expediency must be applied to the proposed path as precisely described. They concern not only the principle of creating a path, but also its alignment, length and width.

An order cannot lawfully include land or dimensions justified only by a proposed bridleway where the order actually creates a footpath. The order and its map must define the land affected with sufficient precision to protect both the landowner and the public.

Hampshire County Council promoted orders intended to complete the South Downs Way across the Meon Valley. Following public inquiries, the Inspector confirmed an order creating a footpath over the claimant’s land, including a widened section originally designed to accommodate a bridleway crossing of the A32.

The claimant sought judicial review, arguing that the order was outside the powers conferred by section 26 of the Highways Act 1980 because the width and alignment had not been justified for a footpath. A further issue concerned the precision of the order’s description and plan.

1. The claim succeeded. The court quashed the confirmed order insofar as it affected the claimant’s land between points E and F and points G and H.

2. Under section 26(1) of the Highways Act 1980, the authority must assess need and expediency by reference to the proposal contained in the order. Reading section 26(1), section 26(4), section 26(5) and regulation 2 of the Public Path Orders Regulations 1993 together, that assessment must address the proposed path’s detailed alignment, length and width, as well as the general principle of creating a path.

3. This conclusion reflected the consequences of a public path creation order, including the transfer of land on confirmation, compensation consequences and the creation of enforceable public rights. Questions of alternatives, public amenity and impact on the landowner may depend on the precise route and dimensions.

4. The Inspector had not asked whether the dimensions confirmed were needed or expedient for a footpath. They had arisen from requirements associated with equestrian and cycle users and had been retained to avoid prejudicing a possible later bridleway. The order was therefore outside the statutory powers.

5. The order’s description and plan also required sufficient precision to identify the land affected. The court considered that the larger-scale subsidiary plan proposed in 2006 supplied the necessary precision; without it, the order would have been unlawful.

6. Although the claimant had not raised the dimensions point earlier, relief was not refused as a matter of discretion. The Inspector remained responsible for applying the statutory requirements, and the error was a clear excess of power. The ordinary order for costs was made in favour of the claimant, with detailed assessment.

7. Permission to appeal was refused. The court was not satisfied that the proposed appeal had a real prospect of success or that the statutory construction issue created a sufficiently compelling reason for an appeal.