- Factors to consider on a statutory footpath diversion are not exhaustive (The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs)
- What was the background?
- What did the court decide?
- What are the practical implications of this case?
- Conclusion and is this the end of the matter?
- Case details
Local Government analysis: Section 119(1) of the Highways Act 1980 (HiA 1980) confers power on a council to make an order diverting the line of a public footpath, bridleway or restricted byway ‘in the interests of the owner, lessee or occupier of land crossed by the path or way or of the public’. The Court of Appeal has held in this case that, in determining whether it is expedient to confirm the diversion order, the factors specified in HiA 1980, s 119(6)(a) to (c) are mandatory considerations but that other relevant matters can also be taken into account. In other words, the list of factors (a), (b) and (c) is not exhaustive. In deciding at the Test 3 stage whether to confirm the diversion order, the inspector is also entitled to take into account the interests of the owner or of the public (as the case may be). In many cases, this will make it easier for a landowner to obtain the diversion of a public right of way over his land. Written by Simon Adamyk, barrister at New Square Chambers (junior counsel for The Open Spaces Society in this case).
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