Grace Bennett v Secretary of State for the Environment, Food and Rural Affairs

When deciding whether to confirm a public path diversion order, the decision-maker must compare the convenience of the proposed route with the existing lawful route. Guidance requiring temporary obstructions to be disregarded does not justify assuming that an existing path is subject to a maintenance obligation which does not exist. An inspector who proposes to depart from common ground, or to rely on an unexpected and potentially decisive matter, should normally give the parties a reasonable opportunity to comment. Informal assurances about maintenance may be relevant, but they are materially different from legally enforceable agreements. A decision based on an incomplete comparison or procedural unfairness is liable to be quashed.

The claimant sought judicial review of an inspector’s decision not to confirm a public footpath diversion order made by Gloucestershire County Council under the Highways Act 1980. The proposed diversion offered a longer route, with sections of two and three metres in width. The inspector concluded that the available width had narrowed to about one metre in places and that the diverted route would therefore be substantially less convenient.

The claimant challenged the decision on the grounds of factual error, procedural unfairness and failure to compare the existing and proposed routes properly. The central issues were whether the inspector should have sought further submissions about maintenance and whether she had applied the convenience test to the correct existing route.

1. Ground 1 failed. The inspector was entitled to record the physical condition observed during her site visit. The judicial review proceedings were not an opportunity to gainsay those contemporaneous observations.

2. Ground 2(a) succeeded. The parties had proceeded on the basis that the claimant would enter into an agreement under section 119(5) of the Highways Act 1980 and a maintenance agreement. Although those arrangements were not legally enforceable, they were assurances capable of being converted into a legally binding solution. The inspector was wrong to state that no assurance had been given, or should at least have recognised the distinction between an assurance and an enforceable agreement.

3. The principles in Top Deck Holdings v SoS [1991] JPL 961 and West v SoS [2005] EWHC 729 (Admin) establish that an inspector need not invent an entirely new case or search for conditions not raised by the parties. They did not prevent the inspector from seeking clarification where the existing case was incomplete and a practical solution was readily available. The failure to give the claimant an opportunity to address the maintenance issue was procedurally unfair.

4. Ground 2(b) succeeded. The inspector understood the nominal route of the existing footpath, but failed to conduct a proper comparison of the existing and diverted routes. She paid insufficient attention to the approximately 20-metre section north of the barn, which the claimant’s evidence showed was frequently waterlogged, crossed a brook and had been unused for many years. The guidance concerning assessment of an existing route as unobstructed and maintained to a suitable standard could not be applied mechanically where no maintenance obligation existed.

5. The court declined to determine the late and unpleaded argument concerning the possible use of section 154(1) of the Highways Act 1980. The issue was not sufficiently clear and had not been properly advanced.

6. The Secretary of State’s decision was quashed. The matter was remitted for reconsideration. A legally binding maintenance agreement under section 106 of the Town and Country Planning Act 1990 was identified as the appropriate means of ensuring that the diverted path retained its required two-metre available width.

First-instance judicial review. The inspector’s decision not to confirm the diversion order was quashed and the matter was remitted to the Secretary of State for reconsideration.