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New Judgment on the Test for Footpath Diversions

Ned Westaway

The High Court has handed down judgment in Open Spaces Society v SSEFRA [2020] EWHC 1085 (Admin) on the interpretation of s.119(6) of the Highways Act 1980 that provides for the confirmation of footpath diversion orders, among other things, where it is “expedient … having regard to the effect which” the order will have on (a) public enjoyment of the path as a whole, (b) land served by the existing public right of way and (c) other land.

Lieven J considered a number of authorities, and held that factors (a) to (c) are not exclusive.  The word “expedient” suggests “a broad balance or judgement” (para.43) and that any other approach “would involve … obviously relevant factors being made legally irrelevant” (para.44).  It was therefore open to the inspector in the instant case to have regard to the landowner’s interests when considering the expedience test in s.119(6), notwithstanding that those interests would already have been taken into account as the trigger for the order under s.119(1).

The decision follows the authority of the High Court in Ramblers’ Association v SSEFRA [2012] EWHC 3333 (Admin).  It casts doubt on whether PINS Advice Note 9, on which the inspector relied, is correct, insofar as it suggests the same point was established by R (Young) v SSEFRA [2002] EWHC 844 (Admin).  However that was of no consequence to the lawfulness of the inspector’s approach.  Decision-makers can be clear in light of the judgment that any relevant factors, including a landowner’s interests, agriculture and forestry, biodiversity and public convenience, may properly be included in the overall balancing exercise in s.119(6).
Ned Westaway appeared for the Defendant Secretary of State.