Factual and Procedural Background
This claim concerns a decision dated 31 October 2019 by an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs to decide whether to confirm a diversion order and definitive map modification order made by Oxfordshire County Council ("the Council"). The order, made on 28 May 2015 under section 119 of the Highways Act 1980 and section 53A(2) of the Wildlife and Countryside Act 1981, diverted approximately 228 meters of a public footpath known as Rollright Footpath No. 7 (FP7) near Manor Farm, Little Rollright.
The Inspector confirmed the Order with minor modifications on 31 October 2019, and notice of confirmation was published on 28 November 2019. The Open Spaces Society challenged the decision, arguing that the Inspector misinterpreted section 119 of the Highways Act 1980.
Legal Issues Presented
- Whether the factors listed in section 119(6)(a), (b), and (c) of the Highways Act 1980 are exhaustive when determining expediency under that subsection ("Test 3").
- Whether the Inspector erred in law by taking into account the benefit to the landowner when assessing expediency under section 119(6), instead of considering only the matters in subsections (a) to (c).
- The proper construction and application of section 119(6) regarding the balancing exercise between the interests of landowners and public enjoyment.
Arguments of the Parties
Appellant's Arguments
- The factors in section 119(6)(a), (b), and (c) are the only matters relevant to determining expediency under Test 3; other considerations, including benefits to the landowner, should not be taken into account at this stage.
- The Inspector erred by performing a broad balancing exercise that included the landowner's benefit, which is legally impermissible.
- Section 119 is structured to allow a low gateway test for the landowner's interest (Test 1) and convenience to the public (Test 2), but Test 3 should only consider factors tending against confirmation, as set out in subsections (a) to (c).
- The inclusion of benefits to the landowner in Test 3 creates potential unfairness, allowing landowners to benefit at the expense of third-party landowners despite possible adverse effects on those third parties, even if compensated financially.
- The purpose and structure of section 119 indicate that the legislature intended to limit Test 3 considerations to the specified factors, and any broader balancing distorts the statutory scheme.
Respondent's Arguments
- Test 3 under section 119(6) allows a broad balancing exercise of all relevant factors, including the benefits to the landowner.
- The factors in subsections (a), (b), and (c) are mandatory considerations but do not exclude other relevant matters from being taken into account.
- The appellant's construction is unduly complex and does not reflect the language, purpose, or legislative intent of the statute.
- Relevant public interests such as agriculture, forestry, and biodiversity must be considered at the expediency stage, which would be impossible under the appellant's restrictive interpretation.
- Case law, including R (Young) v Secretary of State and R (Weston) v Secretary of State, supports the approach that Test 3 involves a balancing of interests rather than a strict limitation to the enumerated factors.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Young) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 844 (Admin) |
Clarified that the three tests in section 119(6) are separate, with Test 2 (convenience) distinct from Test 3 (expediency), and Test 3 may involve a balancing exercise. |
The court found that while the ratio did not explicitly support an unfettered balancing at Test 3, the Inspector's approach to balancing interests was not an error of law and consistent with the case. |
| Ramblers Association v Secretary of State for Environment, Food and Rural Affairs, Weston and others [2012] EWHC 3333 (Admin), [2013] JPL 552 |
Confirmed that the factors in section 119(6)(a)-(c) are not exhaustive and that all material considerations relevant to expediency may be taken into account. |
The court accepted that the Inspector was correct to consider factors beyond the enumerated ones and rejected the appellant’s narrower interpretation. |
| R (Hargrave) v Stroud District Council [2001] EWHC Admin 1128, [2002] JPL 1081 |
Described the first test under section 119(6) as a low threshold regarding whether the diversion is in the landowner's interests. |
Used to illustrate that once the low threshold is met, the scale of benefit to the landowner is relevant in the balancing exercise at Test 3. |
| R v Secretary of State for the Environment ex p Stewart (1980) 39 P&CR 534 |
Held that the term "expedient" allows a broad judgment involving other considerations beyond those expressly stated. |
Supported the view that expediency under section 119(6) involves a broad balancing of relevant factors. |
| R v Secretary of State for the Environment, ex parte Cheshire County Council [1991] JPL 537 |
Confirmed that the expediency test involves a broader and discretionary question. |
Reinforced the interpretation that expediency under section 119(6) is not confined to a narrow list of factors. |
Court's Reasoning and Analysis
The court analyzed the statutory framework of section 119 of the Highways Act 1980, focusing on the three tests in subsection (6). It acknowledged that Tests 1 and 2 serve as gateway tests, with Test 3 addressing expediency in confirming the diversion order.
The appellant argued that Test 3 should be strictly confined to the factors enumerated in subsections (a) to (c), which primarily concern adverse effects on public enjoyment and land served by the right of way, excluding any consideration of benefits to the landowner. The court rejected this narrow interpretation as overly complicated and inconsistent with the statute’s language and purpose.
The court emphasized that the statute does not state that the factors in (a) to (c) are exhaustive, and the use of the word "expedient" implies a broad balancing exercise. It found it illogical to exclude relevant benefits to the landowner or public benefits from consideration at the expediency stage, especially given that local authorities can also apply for diversions in the public interest.
The court addressed concerns about potential unfairness where a landowner might benefit at a third party’s expense, noting that compensation provisions exist to mitigate such impacts. It concluded that the statutory scheme contemplates scenarios where the applicant landowner gains a benefit, and a third party may suffer a disbenefit, provided the diversion is in the public interest.
Regarding case law, the court found that although the ratio in R (Young) did not explicitly endorse an unfettered balancing at Test 3, it did not preclude it either. The decision in R (Weston) supported the broader approach to expediency. The court further held that reliance on Young by the Inspector was not a legal error.
Consequently, the court upheld the Inspector’s approach to Test 3 as a broad balancing exercise that includes consideration of benefits to the landowner alongside the enumerated factors.
Holding and Implications
The application to quash the decision was dismissed and the decision to confirm the diversion order was upheld.
The direct effect of this decision is to affirm the lawfulness of the Inspector’s confirmation of the diversion order, endorsing a broad balancing approach under section 119(6) of the Highways Act 1980. The court clarified that the factors listed in subsection (6)(a) to (c) are mandatory but not exclusive, allowing consideration of other relevant interests, including the benefits to the landowner and the public. No new precedent was set beyond confirming the correct interpretation and application of existing authority on the scope of expediency under section 119.