Ramblers' Association v The Secretary of State for Environment, Food And Rural Affairs & Ors

Under section 119 of the Highways Act 1980, the decision-maker must distinguish between two expediency questions. The first asks whether diversion is expedient in the interests of the affected landowner. The second considers the wider consequences of the diversion and all material considerations, including public enjoyment and consistency concerns supported by evidence.

There is no additional residual discretion to refuse confirmation after the statutory questions have been properly answered. An admitted legal error will not justify quashing where the court is satisfied that the decision could not have been different without the error. A peripheral point not raised before the inspector will ordinarily not found a challenge.

The claimant challenged, under paragraph 2 of Schedule 2 to the Highways Act 1980, an inspector’s confirmation of a public path diversion order affecting footpaths between Bodicote and Bloxham. The order had been made by Oxfordshire County Council and required confirmation by the Secretary of State.

The inspector had treated the applicants’ knowledge of the existing footpath and the possible precedent for other diversions as irrelevant to the statutory tests. The Secretary of State accepted that those matters were relevant to the second expediency question, but argued that the error could not have affected the result. The central issues were the proper structure of section 119 and whether the admitted errors required the decision to be quashed.

1. Statutory structure. Section 119(1) requires consideration of whether diversion is expedient in the interests of the owner, lessee or occupier of the affected land. That is a distinct first-stage question. The discretionary element in section 119(1) permits consideration of other relevant matters.
2. Under section 119(6), the first expediency question remains confined to the interests of the landowner. The second expediency question is broader. It includes the statutory factors concerning public enjoyment and affected land, together with all other material considerations. Historical integrity and the possibility of precedent could therefore be relevant at that stage.
3. There is no further residual discretion under Schedule 6 enabling an inspector, having answered the statutory questions in favour of confirmation, to refuse confirmation on an independent basis. The Secretary of State’s power to confirm or refuse confirmation after receiving an inspector’s report reflects his ability to reach a different conclusion on the statutory questions.
4. The inspector erred in treating precedent as irrelevant. Applying the high threshold in Simplex GE (Holdings) Limited v Secretary of State for the Environment [1989] 57 P&CR 306, the error could not have affected the outcome because there was no evidence capable of supporting a reasonable concern about precedent. The applicants’ prior knowledge of the footpath either had no legal relevance at the level of generality argued, or could not rationally have altered the result.
5. The argument based on the bare fact of historical integrity was peripheral and had not been deployed before the inspector. It could not found a challenge to the lawfulness of the decision. The claim to quash the confirmation was therefore refused, and an order for costs was made in favour of the Secretary of State.

Not stated in the judgment.