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

At the final confirmation stage for a public path diversion order, section 119(6) of the Highways Act 1980 requires the decision-maker to consider the specified effects of the diversion, but does not make those effects exhaustive. The decision-maker must also consider any material rights of way improvement plan and may consider any other matter relevant to expediency, including the interests of the owner or occupier of the affected land and the wider public interest.

The expediency of the diversion under section 119(1), and the requirement that the diverted path not be substantially less convenient, are separate threshold conditions. Once met, confirmation requires a broad evaluative judgment in which the mandatory and other relevant considerations may be weighed.

A local authority made an order under section 119 of the Highways Act 1980 to divert 228 metres of a public footpath away from the garden of Manor Farm. The inspector found that the diversion protected the occupiers’ privacy, would not make the route substantially less convenient, and caused only a relatively minor loss of public enjoyment when assessed against the footpath as a whole.

The inspector confirmed the order after weighing that loss against the landowners’ interests. The Open Spaces Society challenged the order. Lieven J dismissed the challenge in the Planning Court: [2020] EWHC 1085 (Admin). The appeal raised whether the final expediency decision under section 119(6) was confined to the matters expressly listed there.

1. Appeal dismissed unanimously. Section 119 establishes a three-stage confirmation framework. The decision-maker must first be satisfied that the diversion is expedient in the interests specified in section 119(1). Secondly, the diverted route must not be substantially less convenient to the public. Those are threshold conditions to confirmation.

2. At the third stage, section 119(6) asks whether confirmation is expedient, having regard to the effects specified in paragraphs (a) to (c). Those effects are mandatory considerations. The language does not prescribe an exhaustive list of relevant considerations. In contrast, section 119(1) identifies the interests by reference to which making a diversion order may be expedient.

3. The final stage therefore calls for a broad judgment. The decision-maker must consider the effect on public enjoyment of the path as a whole, other land served by the existing right of way, and land crossed by the new right of way. The decision-maker may also consider other relevant matters, including the interests of the owner or occupier whose land is crossed by the existing path and, where relevant, the wider public interest. A material rights of way improvement plan is also a mandatory consideration under section 119(6A) of the Highways Act 1980.

4. The court approved Ouseley J’s construction in Weston, [2012] EWHC 3333 (Admin). The court explained that Young did not establish that the final stage required a balancing exercise, but the inspector’s erroneous reliance on it caused no legal error. The inspector had in fact adopted the correct construction of section 119(6).

5. On the findings made, it was lawful to weigh the relatively minor loss of public enjoyment against the privacy interests arising from a path through a private garden. The order was validly confirmed. The appellant was ordered to pay the respondent’s assessed costs, and permission to appeal to the Supreme Court was refused.

• Court of Appeal (Civil Division): Appeal dismissed: [2021] EWCA Civ 241. The court upheld the inspector’s confirmation of the public path diversion order and affirmed the construction adopted below.

• High Court, Administrative Court (Planning Court): Lieven J dismissed the statutory challenge to the order: [2020] EWHC 1085 (Admin).