Diversion of public footpaths made easier (R (Open Spaces Society) v Secretary of State for Environment, Food and Rural Affairs)

Publication Date:
20 May 2020


Local Government analysis: Use by the public of a public footpath or bridleway which crosses a person’s land can be very intrusive. It can threaten the owner’s privacy and security, especially if the public can see into the house from the path. On the other hand, the house may be one of distinction. To be able to view it while passing by may, for the public, add materially to the enjoyment of doing so. Section 119(1) of the Highways Act 1980 (HA 1980) confers power on a council to make a diversion order in the ‘interests’ of the ‘owner, lessee or occupier of land crossed by the path...or of the public’. Where it does so, there may be objections. In that event an inspector has to decide whether to confirm the order. Provided the inspector is satisfied that confirmation would indeed be in the interests of the owner (test 1) and that the new path will not be ‘substantially less convenient’ than the existing path (test 2), the inspector will be entitled to confirm the order but only if satisfied that it is expedient to do so ’having regard to the effect which’ the diversion will have on the public’s enjoyment of the path as a whole and on the land of certain adjoining owners (see HA 1980, s 119(6)(a), (b) and (c)) (test 3).In the case, Lieven J has held that the inspector is also bound, in deciding at the test 3 stage whether to confirm, to take into account the interests of the owner or of the public (as the case may be), even though the relevant interests are not expressly included in the matters to which the inspector is to have regard. Written by George Laurence QC, barrister, and Simon Adamyk, barrister, at New Square Chambers.

Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 1085 (Admin) 


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This article was first published by Lexis®PSL on 11/05/2020.

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