England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR M SUPPERSTONE QC, sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2
		22 July 2002

Monday, 22nd July 2002

1. LORD JUSTICE SCHIEMANN: The appellants wish to divert a footpath running through their land. Their reasons are perfectly understandable. At the moment it goes very close to their house. They are afraid that potential burglars will spy out the land with a view to establishing methods of approach and will find it easier to gain access to their house than they would do if the line of the path ran further away. The police wrote a letter saying that the appellants' fears were justified. Moreover the appellants point out, no doubt rightly, that their privacy is less than it would be if the footpath were further away.
2. So the appellants made an application for a footpath diversion order. The local District Council made the order under section 119 of the Highways Act and publicised it. This resulted in opposition to the proposal on the part of the local Parish Council and a few individuals. Although the vast majority of individual letters about the proposal were on the appellants' side, and although the highway authority had no objection to the proposed diversion, the District Council decided not to submit the order to the Secretary of State for confirmation. The appellants challenged the legality of that decision on two grounds essentially: first, the statute properly construed did not permit the Council to refuse to submit the order once they had made it; second, and in the alternative, the decision not to do so on the facts of the present case was perverse and thus not legally open to the Council. Those submissions were rejected by Mr Michael Supperstone QC, who heard the case and was sitting as a Deputy High Court Judge. The landowners appeal to this court.
3. I look first at the statutory position.
4. In principle, a landowner cannot divert a footpath without outside approval - if I may use that neutral term for the moment - because such a diversion deprives the public of their right to use the footpath. A landowner is not asserting any right. He is asking others to forego their rights.
5. The only mechanism for securing outside approval used to be the writ ad quod damnum. This was a mechanism which gave those objecting to the proposal to divert an opportunity of demonstrating the harm which such a diversion would cause. The court was charged with giving that outside approval if appropriate in its view.
6. However, there are nowadays, a number of ways in which the landowner can secure outside approval to such a proposal to divert a footpath. No longer is it the court which is charged with deciding whether or not to give outside approval: it is either a local authority or the Secretary of State.
7. The provisions with which we are primarily concerned here are those set out in section 119 of the Highways Act 1980. The relevant provisions read as follows:

"(1) Where it appears to a council as respects a footpath... that, in the interests of the owner... of land crossed by the path... or of the public, it is expedient that the line of the path... should be diverted... the council may... by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order

(a) create... any such new footpath as appears to the council requisite for effecting the diversion, and

(b) extinguish... the public right of way over so much of the path as appears to the council requisite as aforesaid.

An order under this section is referred to in this Act as a 'public path diversion order'.

(6) The Secretary of State shall not confirm a public path diversion order, and the council shall not confirm such an order as an unopposed order, unless he or, as the case may be, they are satisfied that the diversion to be effected by it is expedient as mentioned in subsection (1) above, and further that the path... will not be substantially less convenient to the public in consequence of the diversion, and that it is expedient to confirm the order having regard to the effect which -

(a) the diversion would have on public enjoyment of the path...

(b) the coming into operation of the order would have as respects other land served by the existing public rights of way..."

- then there is a third matter.

8. Subsection (8) provides:

"Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path diversion orders."

9. Those provisions clearly envisage a multi-stage procedure. How many stages there are to be depends on whether the proposal provokes opposition.
10. I look now at the making of the order which is the step antecedent to the one with which the court is presently concerned.
11. It is a condition precedent to the making of the order that it appears to the council that either it is expedient in the interests of the owner that the line of the path should be diverted, or it is expedient in the interests of the public that the line of the path should be diverted.
12. Grammatically, the word "may" in section 119(1) applies to the act of creating and extinguishment by following the statutory process. The creation and extinguishment is achieved by confirmation of the order. That confirmation can be done by the authority in the case of unopposed orders but only by the Secretary of State in the case of opposed orders.
13. Mr Peter Birts QC submitted on behalf of the appellants that the word "may" was placed in the statute in order to allow for the possibility that the authority which was in principle prepared to divert a footpath might wish to proceed by some other statutory process rather than by the process set out in section 119. He instanced the possibility of making a stopping up order under section 118 followed by a footpath creation order under section 26. He submitted, however, that unless some other statutory process to achieve the same end was used, then the Council which had received an application for a footpath diversion had to make the order and had no discretion simply to refuse to make the order. Any discretion that it had came at the very end of the process when confirmation was under consideration.
14. I would reject that submission. On the face of section 119(1) the word "may" gives the authority a discretion, even in a case where the condition precedent is fulfilled, not to embark on the statutory process.
15. On the face of the subsection therefore the authority has a discretion as to whether or not to make an order. I do not consider that the mere fact that it is expedient in the interests of the owner that the line of the path should be diverted means that Parliament has imposed on the authority a duty to make such an order once it is satisfied that this condition precedent has been fulfilled.
16. While I understand the suggestion made that the word "may" has been inserted solely in order to allow the authority to use some other statutory procedure I find that suggestion inherently improbable. It requires a considerable feat of the imagination to think of circumstances where an order could be made under section 119 and could also be made under these other sections, and where it would be sensible to employ such other sections.
17. In my judgment the authority faced with an application to make a footpath diversion order is at liberty to refuse to do so. In considering what to do the Council is, in my judgment and contrary to Mr Birts' submissions, entitled to take into account the matters set out in section 119(6). It would be ridiculous for the Council to be forced to put under way the whole machinery necessary to secure a footpath diversion order where it was manifest that at the end of the day the order would not be confirmed. So much for the making of the order.
18. But what is the position once the authority has made an order. Are they at liberty to refuse to submit it to the Secretary of State?
19. There is no express provision as to what is to happen in the, no doubt rare, case of the authority changing their mind as to the desirability of diverting the footpath after having made an order. But for my part I see no reason why, other things being equal, they should not change their mind. There is often in these questions no blindingly right answer. Different councillors may take a different view, there may be local elections, it may be that after the making of the order but before any publicity is made an objection comes in spontaneously from a Parish Council pointing out a number of reasons why the order should not be made. In those circumstances I can see no reason why one should construe this Act of Parliament in such a way as to put the authority into a straitjacket where it must continue the process just because it has started it.
20. When one looks at the provisions of the schedule referred to in the section, one sees that paragraph 1 provides:

"Before... a public path diversion order is submitted to the Secretary of State for confirmation or confirmed as an unopposed order, the authority by whom the order was made shall give notice in the prescribed form..."

21. This is manifestly so as to give an opportunity for objection after an order has been made. I noted that the word "shall" is used here rather than "may". But I take the view that notwithstanding the use of "shall", that paragraph is not to be read as imposing a duty upon the authority to give publicity to the making of the order. The giving of this notice is clearly however a condition precedent to the confirmation of the order if the authority wishes to proceed that far.
22. We are here concerned with a case where there is a sustained objection. In paragraph 2(2) of the schedule provides:

"If any... objection... is not withdrawn... the Secretary of State shall, before confirming... the order... either

(a) cause a local inquiry to be held, or

(b) afford to any person by whom any... objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by him for the purpose, and... may... confirm... the order... with or without modifications."

23. On the face of it, affording to the objector of an opportunity of being heard is clearly a condition precedent to the confirmation of the order by the Secretary of State. Clearly, there is no duty imposed upon the Secretary of State to confirm the order. Once more we find the word "may". It is unnecessary to decide the point in the present case, but I would hold that as a matter of the construction of the Statute it is open to the Secretary of State on receiving the order, and without appointing anyone to hear the objectors or the owner, to decide that he will not confirm the order.
24. Where there is an established objection the authority has no power itself to confirm the order: see section 119(1).
25. It clearly has power to submit the order to the Secretary of State. The question before us is whether it has a duty so to do. No such duty is expressly imposed upon the authority. If, as I think, the authority has a discretion as to whether or not to initiate the diversion process in the first place - by making the order - then one would expect it to have the power not to continue with the diversion process - by submitting the order - once it is furnished with reasons by the public for not doing so.
26. I see no policy reason why any such duty should be implied.
27. I would therefore reject the argument that the Council has no discretion but to make the order. I would also reject the argument that the Council had no discretion but to confirm an order once made if there is no objection or to submit it to the Secretary of State if there is an objection.
28. The alternative submission made by Mr Birts was that the decision not to submit the order was perverse or irrational. He points out that there were a number of arguments in favour of confirming the order. So there are. I set them out at the beginning of this judgment. He submits that the arguments against making the order were not as strong. The arguments were that it was an ancient footpath, that the diverted footpath would be longer than the undiverted footpath and that it would be muddier than the undiverted footpath. He points out that judging at any rate by the number of people who took the trouble to write, there was much local support for the confirmation of the order. All these are fair points. Had they carried the day no challenge on the ground of perversity could have been made against the District Council by the Parish Council. But the fact that a decision to go one way would not have been perverse does not carry with it the implication that a decision to go the opposite way therefore is perverse. In my judgment, in the present case a decision either way would have been lawful. We are here in territory where reasonable persons can differ. The persons charged by statute to make this decision were the local authority. There was nothing unlawful about the decision which in the event the Council took. I mention in passing, though I do not give the point much weight, that by virtue of section 120(3) the Secretary of State is empowered without any intervention by the Council to make an order in circumstances such as the present. I am told by counsel, and have no reason to doubt it, that the policy of the Secretary of State, in any event when faced by footpaths not of national significance, is not to intervene with the local policy decision and therefore although there may be an alternative statutory route to the Secretary of State, in real life it would avail those appellants nothing. As I say I am quite prepared to believe that that is the case. But it merely lends emphasis to the fact that the Secretary of State takes the view that this is essentially a matter for the local authority, a view which clearly has a certain amount to commend it when one considers all the other calls upon the Secretary of State's time and available resources.
29. Mr Birts has toyed with submissions under Article 8 of the Human Rights Convention and Article 1 of the First Protocol to that Convention. Those submissions were not needed if either his first or second submission described above was correct. On the assumption that these two submissions are incorrect, as I would hold, then no submissions under the Human Rights Act can possibly succeed - a proposition, I think, which is one in the event Mr Birts was inclined to accept. I see nothing in either article to lend support to the view that the statute should be construed otherwise than I have construed it or to make irrational that which, apart from the Act, I would regard as rational.
30. I would therefore dismiss the appeal.
31. LORD JUSTICE BUXTON: I agree. This case depends upon the nature of the duty or discretion that is imposed upon a Local Authority that receives an application for a diversion of footpath order under section 119. It would not be surprising if a high degree of discretion and judgement were conferred upon the Local Authority in those circumstances. There are two reasons at least for that. The first is that section 119 deals with interference with, and changes to, public rights, that is to say the rights of the public in the footpath. The custodian and adjudicator upon those rights is the Local Authority, and it is to be expected that as a public authority it is given considerable discretion to deal with matters of public interest. That conclusion as to section 119 is, in my judgement, reinforced by the point very fairly made by Mr Birts that exactly the same procedure applies under section 118 which deals not with the diversion, but with the slopping up of footpaths and bridle ways, that is to say their complete extinction: which might well be thought to have a more extensive impact on public rights than does a mere diversion. That is the background to the structure of these sections.
32. The second and more practical reason why I am wholly unpersuaded that the local authority, when it receives such an application, is effectively obliged to make an order subject to local complaint and objection, is simply from the point of view of weight of work both for the local authority and for the Secretary of State. Many landowners may well wish at least to explore whether a public footpath running across their property should remain where it is, or under section 118 should remain anywhere at all. We were properly shown inhibitions on irresponsible applications by landowners in terms of costs orders that can be imposed upon them. Nonetheless, I would find it surprising if Parliament had created a structure whereby the fairly elaborate process envisaged, and properly envisaged in proper cases, by section is 119 and its cognate sections had to be put into operation every time a landowner raised objection to the presence of a footpath.
33. I therefore approach section 119 on the basis that it would need clear words in the section to impose upon the Council the initial obligation to make an order once an application is made to it. Far from there being the words in that sense there are in my judgement clear words in the opposite direction, by the use by Parliament of the word "may" in section 119(1). True it is that on one reading of the section it might be said in literal terms that the licence to the Council to exercise its discretion extends only to the making of the order, and not to the submission of the order to the Secretary of State. But that is only one possible reading of the section. On another reading, even of the literal words, the discretion of the Local Authority continues past the stage of the making of the order and into the stage of considering whether to submit the order to the Secretary of State. In light of the background considerations that I have already ventured to refer to, it seems to me that the latter reading is by far the more cogent interpretation of this section. As my Lord has said, the process of inquiry and the process of consideration will be a continuing one, and indeed the Local Authority not only may, but ought to, retain an open mind on whether or not it can support the propositions originally put before it in the light of local reaction.
34. In this case there was local reaction which, despite the efforts of the Council, could not be resolved. The Council therefore decided that it would not submit the order to the Secretary of State. I do not think that it acted unlawfully in so doing. As was pointed out in the skeleton argument put forward by Mr Edwards on behalf of the Local Authority, in submitting the order the Council has to set out the grounds upon which it supports it. If it has come to the conclusion that it no longer is able to support the order it would first of all be difficult to see what the Council should say to the Secretary of State; and secondly, it would be an uneconomic and an unjustified use of the Secretary of State's time and judgement to require him to adjudicate upon an order the proposer of which no longer supports it.
35. I therefore do not find anything surprising in the construction argued for by the Local Authority. For those reasons in addition to those put forward by my Lord I would agree with the order that he proposes.
36. I would only add two things. My Lord at the end of his judge touched upon two arguments additionally put forward by the appellants: one on grounds of irrationality, and the second in terms of the European Convention of Human Rights. The irrationality point had, I have to say, an unfortunate history. In the grounds put forward in the application in the Administrative Court, it was only dealt with in this way at paragraph 30 of the grounds:

"Further or in the alternative, the Claimants contend that the decision taken by the Defendant, which so adversely affects the Claimants' rights, lacks the appearance of a decision fairly taken. Such an approach by the Defendant was not in accordance with natural judgment."

37. That, I have to say, is not a complaint on grounds of irrationality, whatever else it might be. Before the judge this point emerges in the written submissions to only in what appears to have been a document put forward by the present appellants in reply, in these terms:

"Insofar as the Council has a discretion not to refer the order the claimants submit that it exercised it wrongly and unfairly and irrationally in this case."

- with no further particulars given.

38. In his judgment the judge, having set out the grounds of objection, that the Council was eventually persuaded of, said this in paragraph 43:

"Mr Birts made no detailed submissions to the effect that if he was wrong about the scope of the discretion the Council acted irrationally in refusing to refer the diversion order to the Secretary of State. I reject the Claimants' challenge to the decision of the Council not to refer on grounds that it was perverse or in some respect contrary to Wednesbury principles."

39. Mr Birts told us that in fact the judge was mistaken in thinking that. He had in fact outlined to the judge the case that he put in more detail to us. However that may be, in view of the limited way in which the point was pursued in the written exchanges it is not surprising that Mr Supperstone gave it less weight than the appellants say that he should have done. Further, I do have to say that in more detailed exploration of this point in this court it became clear that at least part of it rested on a suggestion that a particular member of the Council should perhaps not have been voting on the issue concerned, or alternatively, had by their opinions led their colleagues into an irrational conclusion. If that was part of the argument it should, in my judgement, have been made much more clear earlier on. I should also say, in fairness to the persons concerned, that nothing put before us showed any basis for that allegation.
40. I make these points only to say that if an irrationality challenge is to be taken it needs to be taken early and in detail, and not left to be expanded in this court.
41. The same has to be said, I fear, about the complaints under the European Convention of Human Rights, which again do not seem to have been ventilated before the judge in any detail at all. This court cannot deal with arguments of this sort of complexity, and, in a different case, importance when it does not have the benefit of the view of the judge below. And that is quite apart from the fact that the view of this particular judge would have been of particular benefit to this court.
42. I make those points by way of footnote, otherwise I entirely agree with what my Lord has said.
43. LORD JUSTICE LONGMORE: I agree with both judgments and do not wish to add anything.
(Appeal dismissed with costs, such costs to assessed if not agreed).