The Open Spaces Society v Secretary of State for Environment, Food And Rural Affairs

Section 119(6) of the Highways Act 1980 requires three separate tests. The first two operate as gateway tests: the diversion must be expedient in the relevant interests and must not be substantially less convenient to the public. The third test asks whether confirmation is expedient. The matters listed in section 119(6)(a)–(c) are mandatory considerations, but they are not exhaustive. The decision-maker may conduct a broad evaluative balance, including the scale of benefits to the landowner or public and other material public interests. The listed matters are not confined to adverse effects. Once the section 119(6) expediency question has been properly answered, there is no residual discretion to reach a different outcome.

The claimant challenged an Inspector’s decision, made on behalf of the Secretary of State, confirming an order under section 119 of the Highways Act 1980. The order diverted part of Rollright Footpath No. 7 away from Manor Farm and modified the definitive map and statement.

The Inspector found that diversion was expedient in the interests of the owners, would not make the path substantially less convenient, and was expedient to confirm despite a relatively minor reduction in public enjoyment. The central issue was whether section 119(6)(a)–(c) exhaustively defined the matters relevant to the third expediency test, or whether a broader balancing exercise was permissible.

1. The claim was dismissed and the Inspector’s decision upheld.

2. Section 119(6) of the Highways Act 1980 contains three separate tests. The first concerns whether diversion is expedient in the interests of the owner, lessee or occupier, or of the public. The second concerns whether the diverted path would be substantially less convenient to the public. These are gateway tests. The third concerns whether it is expedient to confirm the order.

3. The matters in section 119(6)(a)–(c) are mandatory considerations in the third test, but they are not an exhaustive list. The word expedient indicates a broad evaluative judgment. The decision-maker may therefore consider other material factors, including the scale of the benefit to the landowner, benefits to public enjoyment, and relevant public interests such as biodiversity, agriculture and forestry.

4. The matters in section 119(6)(a)–(c) are not limited to effects adverse to confirmation. Their negative consequences must be considered, but the statute does not exclude factors supporting confirmation. The availability of compensation does not prevent the applicant landowner from gaining a benefit at a third party’s potential expense where the diversion also serves the public interest.

5. The court explained that the ratio of R (Young) v Secretary of State for the Environment, Food and Rural Affairs concerned the separation of convenience under Test 2 from expediency under Test 3. Its broader discussion of balancing was not part of the ratio. However, the Inspector’s reliance on that broader approach caused no error because the approach was correct.

6. The court followed the analysis in Ramblers Association v Secretary of State for Environment, Food and Rural Affairs, Weston and others, under which section 119(6) expediency covers all material considerations and leaves no residual discretion after the statutory questions have been properly answered.