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Court of Appeal Rejects Footpath Diversion Challenge

Ned Westaway

The Court of Appeal has upheld the judgment of Lieven J rejecting a challenge to an inspector’s decision to confirm a public path diversion order moving a footpath in Little Rollright, Oxfordshire, away from a private manor house on the grounds of privacy.  The judgment – The Open Spaces Society v SSEFRA [2021] EWCA Civ 241 – is available here.

The case concerned the statutory construction of s.119(6) of the Highways Act 1980 that contains a number of ‘tests’ before a diversion order may be confirmed, including the ultimate question – whether “it is expedient to confirm the order having regard to the effect which

(a) the diversion would have on public enjoyment of the path or way as a whole,
(b) the coming into operation of the order would have as respects other land served by the existing public right of way, and
(c) any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it”.

Lord Justice Lewis (giving a judgment with which King and Elisabeth Laing LJJ agreed) held in summary that while subparagraphs (a)-(c) were mandatory material factors (together with any material provisions of a Rights of Way Improvement Plan), “the decision maker … may have regard to any other relevant matter, including if appropriate the interests of the owner or occupier of the land over which the path currently passes, or the wider public interest”.  He held that conclusion as to the broad nature of expedience was consistent with the law on public path extinguishment orders (under s.118) and creation orders (under s.26).

The case is of some significance as the first time that the Court of Appeal has directly considered the criteria for the confirmation of public path diversion orders.

Ned Westaway appeared for the respondent Secretary of State.