Pubic Rights of Way - grounds for diversion

A recent case in the High Court (Open Spaces Society v. Secretary of State for the Environment, Food & Rural Affairs [2020] EWHC 1085 (Admin)) examined the matters which can be taken into account when determining whether public rights of way should be diverted.

Landowners, as well as other bodies such as the Open Spaces Society, the Ramblers Association or The British Horse Society, may make an application for a Diversion Order to divert a public right of way which is a footpath or bridleway or restricted byway. The relevant statutory provisions are contained within Section 119 of the Highways Act 1980. The application is made to the local authority and if there are objections to the making of the order, the application is referred to the Secretary of State (in practice the application goes to the Panning Inspectorate and is considered by an Inspector through either a hearing or the written representations procedure).

Section 119 sets out those matters which the determining authority should have regard to in considering the application. There are essentially three ‘tests’ as follows:

1. that the diversion to be affected is expedient (in the interests of the owner, lessee or occupier crossed by the path or way or of the public);
2. that the path or way will not be substantially less convenient to the public in consequence of the diversion; and
3. that it is expedient to confirm the order having regard to the effect which:
   1. the diversion would have on the public’s enjoyment of the path or way as a whole,
   2. the coming into operation of the order would have as respect other land served by the existing public right of way, and
   3. any new public right of way created by the order would have as respect the land over which the right is so created and any land held with it.

In the Open Spaces case, the Claimant (The Open Spaces Society) argued that the third test should be narrowly confined to those matters expressly set out within the legislation. This was in contrast to the Inspector (who had heard and confirmed the Diversion Order which was now being challenged) and who had adopted a broader interpretation and carried out a full balancing exercise, which took into account the benefits of the diversion to the landowner as well as other material considerations. It is worth bearing in mind that in this particular case the applicants for the Diversion Order had a high media profile and it was also the case that they were made aware of the existence of the original footpath route prior to their purchase of the property in 2015.

Mr George Lawrence QC for the Claimant argued that the adoption of a broad balancing exercise under the third test would unfairly favour landowners who might use it to create a compelling argument for the diversion of a public right of way which ran close to their property on privacy grounds, quite possibly to the detriment of a third party landowner over whose land those new diverted public rights of way runs.

Despite these, and other, arguments put forward by the Claimants, it was held that the Inspector’s interpretation was correct. Therefore, when considering whether the tests have been met on an application for Diversion Order, provided the applicant has met the first and second test, it is open to the decision maker to consider the degree of benefit to the owner and the weight to be attached to that benefit (where the owner is the applicant) or, conversely, the scale of benefit to the public where an application is made by a local authority. The balancing exercise under the third test may also have regard to the interests of agriculture, forestry or biodiversity.

In summary, the recent Open Spaces case provides clarification as to what factors can be taken into account when considering an application for Diversion Order. Providing the first two tests are met, the decision maker can have regard to a wider range of relevant factors; this might include the extent or weight to be attached to the privacy of the applicant or, in other cases, the extent of the benefit to the members of the public. The case therefore does provide both landowners and, potentially, the public with greater scope in setting out compelling arguments as to why public rights of way should be diverted. The privacy of landowners is just one of a number of considerations which might be relevant. In addition, it is worth noting that just because a landowner is aware of the existence of a public right of way prior to their purchase of a property, it does not preclude the landowner from subsequently making an application for a Diversion Order.

For more information please contact Richard Price.