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 & DIVISIONAL COURT (MR JUSTICE GRIGSON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th November 2002

Lord Justice Schiemann :

The facts

1. We are concerned with a footpath in Sussex. The facts are undisputed and reveal a landowner who apparently deliberately obstructed a public right of way, failed to comply with notices served by the highway authority requiring him to remove the obstructions, and failed to comply with Orders made by a Magistrates Court to remove the obstructions and pay fines. The landowner did however apply for a Public Path Diversion Order which, if confirmed, would have the result of extinguishing that part of the path which was obstructed and substituting a new path which skirted the obstacles. As will appear, events have taken such a course that no decision has yet been taken as to whether to confirm the Order. That is because the Order was opposed and therefore had to be submitted to and confirmed by the Secretary of State – see Section 119 of the Highways Act 1980 ("The Act"). The Order was submitted to him and it was made clear on behalf of the appellant that it was the decision to make this submission followed by the submission which are the only acts under challenge in these proceedings notwithstanding that the claim form and the notice of appeal are cast more widely. Pending a final decision in these proceedings the Inspectorate in charge of holding an inquiry into the Order and advising on confirmation has indicated that it will not process the Order any further. Meanwhile the footpath remains obstructed.
2. The claimant, Ms Ashbrook, is an officer of the Ramblers' Association who are concerned to preserve public rights of way. The East Sussex County Council is the Local Authority with responsibility under the Act for the maintenance of public rights of way. The landowner primarily concerned with this litigation is Rarebargain Ltd who apparently owns most of the land over which the footpath in question runs. There is another landowner, Hamilton Palace Limited, who owns other land over which the path runs and where the path is also allegedly obstructed. Although, as I understand it, both landowners have been served with these proceedings, neither has taken any part in them.
3. The basis of the challenge to the submission of the Order is that by so doing the Council departed from its own published guidelines and that Ms Ashbrook is entitled to complain of that departure on the basis that it defeated her own legitimate expectation as to the Council's conduct. That legitimate expectation is said to be based on a Guidance Note drafted by the Council's Senior Rights of Way Officer, Mr Munn, in 1994 and made available to interested persons such as Ms Ashbrook. Before turning to that Note it is desirable that I should set out the remaining facts in chronological order.
4. At Framfield near Uckfield in East Sussex there is a footpath designated as Framfield 9. It runs Southwards from a public road known as Palehouse Common Lane across land owned by Rarebargain and Hamilton Palace. In or about 1989 a large barn was constructed directly across the footpath. It has to be assumed that that was done at the behest of or at least with the consent of Rarebargain. The footpath was completely obstructed. Subsequently further obstructions were put in place – a barbed wire fence, a locked gate and a line of refrigeration units. As the Judge held and as was not disputed it is difficult to draw any conclusion other than that these were deliberate acts designed to deprive the public of the use of the footpath.
5. For the following 10 years there was inconclusive discussion between the Highway Authority and representatives of Rarebargain as to the obstructions.
6. On the 20^th March 2000 the Local Authority served notices under section 143 of the Act upon Rarebargain Ltd requiring the removal of the gates, barbed wire, refrigeration units and barn within 90 days. A further notice was served on Hamilton Palace Ltd in relation to an obstruction of the same footpath further south.
7. On the 15^th June 2000 the solicitors acting on behalf of Rarebargain and Hamilton Palace applied for a diversion of the footpath so as to avoid the obstructions. They agreed as part of the application that if the diversion was adopted they would do work such as would bring the proposed route up to a satisfactory standard in terms of safety and amenity.
8. From the foregoing it seems pretty clear that what happened is that the landowners, on receiving the notices requiring them to remove the obstructions, contacted Mr Munn, the Council's Senior Rights of Way Officer and worked out a proposed diversion which he then showed on the First Plan at their request. This must be a fairly normal course of events. The landowners no doubt hoped to avoid the expense of removing, in particular, the barn and the intrusion of the public walking over their land.
9. On the 24^th August 2000 the Director of Transport issued a note in the following terms:

"Application has been made to divert the above footpath in the interests of Landowners, Rarebargain Ltd and Hamilton Palace Ltd.

Section 119 of the Highways Act 1980 gives the County Council a power to make an Order to divert a public right of way where it is expedient to do so in the interests of the Owner, Occupier or Lessee, provided that, as a consequence of the diversion, the path will not be substantially less convenient or detract from the public enjoyment of the path when considered as a whole.

Provided that these criteria are met, case law has found that it is unreasonable for a Highway Authority to refuse to make an Order.

The existing path has been deliberately obstructed for many years and the Owners were found guilty of wilful obstruction at Lewes Magistrates Court and fined £1600. The County Council has served enforcement notices requiring the removal of the obstructions.

The Owners made the application to divert the path towards the end of the notice period and an alternative route has been provided to allow the public access to the path as a through-route. This action meets the criteria of our guidance note dealing with such cases and pending the outcome of the application, the enforcement action has been suspended. If the diversion is not successful enforcement action will be resumed. ...

The Framfield Parish Council, Wealden District Council, the local member....and the Society of Sussex Wealdmen have all been consulted and raised no objection. The Ramblers' Association have also been consulted and oppose the proposal but despite a national campaign of opposition have not raised any issue that has not already been considered.

It is therefore recommended that the County Secretary, who gives full support to the proposal, be authorised to take all necessary steps with regard to the making of the appropriate Order."

10. On the 18^th October 2000 the Council made the East Sussex (Footpath Framfield 9 (part) further) Public Path Diversion Order 2000.
11. The Council, on the 27^th October 2000, issued an explanatory statement in relation to the Order which they had just made explaining that persons had a right to object. This some, including Ms Ashbrook, did. The result of that was that the Highway Authority had no power to confirm the Order as an unopposed Order but had to submit it to the Secretary of State for confirmation.
12. On the 1^st February 2001 Ms Ashbrook laid informations alleging offences by Rarebargain Ltd of obstructing Framfield 9 in contravention of section 137 of the 1980 Act.
13. On the 20^th March 2001 the Lewes and Crowborough Magistrates convicted Rarebargain Ltd of further offences of wilfully obstructing the footpath contrary to section 137. The company was fined a total of £4000. The Magistrates also made Orders under section 137ZA of the 1980 Act. These required Rarebargain Ltd to remove the lock, wire and refrigerators within 28 days and the barn within 6 months. Rarebargain did not appeal.
14. A substantial number of objections were received by the Council. The decision which is challenged in these proceedings is the decision by the Council to submit the Order to the Secretary of State. That decision was, we are told, taken on the 8^th June 2001 by the Council's Director of Transport and Environment. We have been shown a document of that date over his name which reads:

'I have examined the objections which have been raised to the proposal and do not consider that they raise any point that has not already been considered by the County Council in deciding whether or not to accept the application. Under my delegated powers, I therefore recommend that the matter should be referred to the Secretary of State for a decision to be made following a public inquiry.'

15. That does not read like a decision document but it seems that nothing turns on this since, in any event, on 11^th June 2001 the following letter was sent to objectors by the highway authority:

"A total of 1922 representations were received within the objection period... Despite the high level of response to the Order, no issues were raised which the County Council had not already considered when it decided to accept the Application. The County Council has therefore decided to submit the Order to the Secretary of State... who will decide whether a public inquiry, held by an independent Inspector appointed by the Planning Inspectorate, should take place. All representations will now, therefore, be sent in full to the Department of Environment, Transport and the Regions together with the County Council's submissions in support of the diversion. All submissions will be considered by the Secretary of State and if he decides that an Inquiry should be held, he will inform you of the date and location and you will be invited to either attend or submit further written representations."

16. By a letter of the 10^th July 2001 Ms Ashbrook formally asked the Council to exercise its powers under section 143 (2) of the Act to remove the unlawful obstructions in the light of the Magistrate's Order.
17. On 20^th July 2001 the Magistrates convicted Rarebargain of yet further offences which arose from failure to comply with the earlier Orders and imposed fines of £15,000. These fines have not been paid.
18. The Council indicated in a letter of the 28^th July 2001 to Ms Ashbrook's solicitors that it had decided that it would not exercise its powers under section 143 (2) to remove the obstruction pending the decision of the Secretary of State on the Public Path Diversion Order. There is nothing in this letter to indicate that the Council had weighed in the balance the flagrant refusal of the owner to comply with the section 143 notices and the Orders of the Magistrates Court. The Order was submitted to the Secretary of State in August 2001.
19. The present proceedings commenced in the following month. Grigson J dismissed the claim and the appellant appeals to us.

The Guidance Note

20. The Note is in these terms

EAST SUSSEX COUNTY COUNCIL

GUIDANCE NOTE FOR PROCESSING PUBLIC PATH ORDERS

The County Council's aim

To consider applications for path diversion from land owners/tenants and to promote changes to the rights of way network in the county where these are considered to be advantageous to the applicants and beneficial to the public.

Policy

All applications and proposals will ONLY be dealt with when the following criteria are met: -

1. The definitive line of the rights of way affected by the proposal are open, signed and clear and safe to use.

2. The status of the path is not in dispute.

3. The statutory criteria for a path diversion can be met.

4. If a proposal is in the Applicant's, Landowner's and/or Tenant's interests the proposal will only proceed on the receipt of the following:

(a) written agreement that the County Council's administrative and advertising costs will be met

(b) written agreement that any required works will be undertaken and paid for by the Applicant/Landowners and/or Tenants

(c) production of proof of title to the land affected.

5 The proposal is not considered to increase the County Council's financial liability towards the maintenance of the rights of way subject to the proposal or if the financial liability is reduced.

6 Where a public right of way has been obstructed by a structure/building with or without planning permission, a diversion will be considered and processed if: -

(a) the removal of the obstruction is not considered reasonably achievable

(b) a safe alternative route is available

(c) all Applicants, Landowners and/or Tenants agree in writing to the proposal and the Applicants, Landowners and/or Tenants agree to pay the County Council's administration and advertising costs

(d) all Applicants, Landowners and /or Tenants agree to undertake and pay for any works that may be required to bring the proposed route into good order.

…

21. The background to this Note is contained in Mr Munn's first statement. He says this:

"9. In about 1994 I formulated an internal Guidance Note, ..., in order to establish a more uniform approach to the determination by the (then) 4 area officers of Public Path Diversion Applications and because there is no nationally agreed best practice on this subject. The Guidance Note has not been adopted as policy or approved by the Council, nor has it been published or circulated generally to members of the public. It is a departmental note made by officers for officers.

10. That said, on a few occasions applicants and others have asked whether there is any guide to the way Public Path Diversion Applications are dealt with by the Council, and the Council has been content to provide a copy of the Guidance Note in response.

13. The Council's principal aim in the exercise of its functions relating to public paths is to ensure that they are kept open and properly maintained. This is reflected in criterion 1 above. Criterion 3 above requires compliance with the relevant statutory provisions. However there is nothing in section 119 of the Highways Act 1980 that prohibits the making of a Public Path Diversion Order where the existing path is obstructed. For as long as I have been a Rights of Way Officer, this Council and I believe most (if not all) other Highway Authorities have entertained Public Path Diversion Applications where the existing path has been obstructed.

14. The Guidance Note therefore accepts under criterion 6 that an application for a Diversion Order may be made where the existing public path is obstructed, provided the requirements of 6 (a) to (d) are met. 6(a) excludes from consideration those obstructions which in the Council's view could reasonably be removed while an application for a Diversion Order is dealt with. Such obstructions would include vehicles, natural vegetation and temporary structures which could be moved with reasonably ease. It was not intended, and has never been understood by me or other officers to mean that any obstruction must be removed if its removal is physically possible.

15. In this case the footpath has been obstructed by fencing, gates, refrigeration units and a barn. While the removal of the refrigeration units, gates and fencing would in my view be reasonable requirement under criterion 6 (a), the removal of the barn, a substantial permanent structure, would not. As the barn is by far the most significant obstruction to the footpath and as a suitable safe alternative route has been provided, the Council has not insisted that the other obstructions are removed pending determination of the application.

16. I am aware that on the 20^th March 2001 the Lewes and Crowborough Magistrates' Court ordered pursuant to section 137ZA of the Highways Act 1980 that the barn be removed within 6 months and the other obstructions within 28 days. At the time the decision to submit the Diversion Order to the Secretary of State was taken, on 8^th June 2001, there remained more than 3 months before the barn had to be removed. It was not considered appropriate simply to wait until the Magistrates' Court Order expired before deciding whether to submit the Order to the Secretary of State nor was it thought reasonable to require removal of the barn before the expiry of the Magistrates' Court Order. However, the Council based its decision on the facts of the case and its normal guidelines."

The Judgment

22. Grigson J held as follows:

"The publication of [the Guidelines] gave rise to a legitimate expectation that the Council would be guided by its own policy and that if it chose not to follow that policy, it would give reasons for making that choice. (Para. 36)

The applicant's submission that it was clear from Guideline 1 that no application could be processed whilst the existing way was blocked should be rejected. (Para 41)

It was open to the Council to decide that the removal of the barn was not reasonably achievable and that thus paragraph 6(a) of the Guidance was fulfilled albeit that it appeared to condone flagrant and deliberate obstruction of the footpath. (Para 55)

The proper interpretation of Paragraph 6(b) of the Guidance required the Council to consider the route of the proposed diversion and to consider whether, once the order had been confirmed and the necessary work was done, that route would be reasonably safe. (Para 60)

Subparagraphs (c) and (d) of Paragraph 6 of the Guidance did not fall for consideration. (Para 40)"

23. The Council accepts that it had a discretion in 2001 whether to submit the Order to the Secretary of State. It was not obliged to merely because it had made the Order : The Queen (o/a Hargrave) v Stroud D.C [2002] EWCA Civ 1281.
24. The submission made by the appellant is that the Council has not complied with its own Guidelines, that she had a legitimate expectation that those Guidelines would be followed, that in all the circumstances it was an abuse of power by the Council to submit the Order to the Secretary of State and that the Judge should have remitted the matter for the Council to consider afresh whether to submit the Order to the Secretary of State – see Regina (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237. Mr Green accepts on behalf of the Council that in principle the doctrine of legitimate expectation is in play and that if the Council did not follow its own Guidance Note properly construed then the decision to submit the Order should be quashed.
25. However, the argument had changed from that presented to the Judge. Mr George Laurence, Q.C. on behalf of Ms Ashbrook, who did not appear below, did not contend that anything in the statute prevented the submission of the Order although he drew attention to the general duties of a Highway Authority set out in section 130 of the Act. The submission now relied on the following contentions.

(a) At the time of the making of the order on the 18^th October 2000 and at the time of its submission in August 2001 the existing footpath was not open, signed and clear and safe to use: it was blocked by the barn and the other obstacles. Thus guideline 1 was breached;

(b) Although it was now accepted that Guideline 6 sets out exceptions to Guideline 1, by reason of the following the exception in Guideline 6 was not available

(i) As to (a), there was no room for the view that the removal of the obstruction was not reasonably achievable;

(ii) As to (b), no safe alternative route was available;

(iii) As to (c), there was no agreement to undertake and pay for any works that might be required to bring the route proposed in the Order (namely the Second Proposed Diversion) into good order.

26. The last of these contentions is not one which, in my judgment, is open to the appellant. It was not argued before the Judge. He held in paragraph 40 that (c) did not fall for consideration. In the appellant's skeleton argument before us it was asserted to have been common ground that (c) was satisfied. In the appellant's skeleton argument below, the argument proceeds on the assumption that (c) was satisfied.
27. The argument centred round Guideline 6 subparagraphs (a) and (b).

Subparagraph (a)

28. Mr Laurence faintly argued that there was no evidence that the Council had ever considered subparagraph (a). That I would reject. The internal note of the 24^th August 2000 cited in paragraph 11 above in general terms indicates the contrary by asserting that the criteria of the guidance note were met. Criterion 6(a) could not be met without there having been a consideration of the matter. Moreover, paragraph 15 of Mr Munn's First Statement quoted above is a similar indication although I am conscious of the problems posed by reliance on evidence compiled after the event – see R v Westminster Council, ex p. Ermakov [1996] 2 All ER 302.
29. The appellant has not put forward any evidence that subparagraph 6(a) was not considered and the burden of proof is on her to show that the Council has acted unlawfully by failing to consider its own policy.
30. This is not the end of the point however. It is open to the appellant to submit that no council could lawfully have come to the conclusion that the removal of the barn was not reasonably achievable and it was this which formed the centrepiece of the appellant's submissions before us.
31. Mr Laurence submitted that as a matter of common sense it was obvious that a barn could be removed. So it probably can, but that does not deal with the adverb 'reasonably' which appears in the policy. I would construe the adverb as indicating that it was open to the Council to ask itself the question in this form: "Is the removal reasonably achievable in all the circumstances, bearing in mind the fact that the barn was put up in defiance of the law but also bearing in mind the cost of removing it, the possibility that the Diversion Order may be confirmed, the degree of use of the footpath and other possibilities of moving round the area?" I accept that the word 'achievable' seems to look towards engineering rather than other matters but I consider that the insertion of 'reasonably' indicates that price and other considerations are relevant. Amongst those relevant considerations is the fact that what was done here was a deliberate obstruction deliberately continued in the face of repeated objections by the Highway Authority and of convictions by the Magistrates. What is reasonable must be looked at from all sides – the public's, the Council's and the landowner's. Weight is a matter for the Council. But the Council must take into account all relevant considerations.
32. Mr Laurence pointed to the notices served on the landowners by the Council on 20^th March 2000 referred to in paragraph 6 above and to the Order made by the Magistrates Court on 20^th March 2001 referred to in paragraph 13 above. He submitted that, given that such notices and Orders should only be served and made when it was reasonable to do so, it followed that the Council was legally bound to consider the removal of the barn reasonably achievable at the time when they submitted the Order to the Secretary of State. I accept the premise but reject the conclusion which does not follow as a matter of logic. Apart from anything else reasonability has to be judged as at the time of the relevant decision. In my judgment therefore it was legally open to the Council to conclude that in the light of all the circumstances as they were at the time when the Council decided to submit the Order it was not reasonable to require the obstruction to be removed.
33. Nevertheless, they needed to face fairly and squarely that there had been a deliberate and persistent flouting of the law. They needed to take this into account when deciding whether or not to submit the Order for confirmation.
34. In my judgment, the letter referred to paragraph 18 above and paragraph 16 of Mr Munn's first statement referred to in paragraph 21 above justify the conclusion that the Council, in deciding whether to submit the Order for confirmation did not take into account the deliberate flouting of the public's rights. This was a relevant and important consideration which should have been taken into account even though it did not, as a matter of law, compel the conclusion that the Order should not be submitted for confirmation.
35. I would therefore quash the decision to submit the Order. It is common ground that this will have the effect of restoring the matter before the Council so that it may consider afresh whether or not to submit the Order.

Subparagraph 6(b).

36. The Council maintains that the Judge's interpretation of Guideline 6(b) was not one which it had put forward. The Council accepts that it can not be supported. Both parties accept, and this accords with my own impression, that Paragraph 6(b) refers to the interim period between submission of the application for a Public Path Diversion Order and the conclusion of the work on any new path once the Order has been confirmed.
37. The secondary issue which was argued before us was whether the appellant had shown that in the interim period, in particular August 2001 when the Order was submitted, a safe alternative route to the part of footpath 9 which had been blocked was available. The difficulty which faces this court in relation to that question is that the evidence was in the form of statements, is conflicting and was not the subject of cross examination. It was not necessary for the Judge to make a finding on the point since, on his interpretation of the Guideline, no finding was required in relation to this period.
38. Nor is it necessary that we should come to a conclusion on it. Given that we propose to quash the decision to submit the Order, the point is of no continuing relevance. It may arise again but it will be decided on different facts in relation to a different date – the date of any new submission.
39. Mr Laurence makes a number of criticisms of the judgment under appeal which are not directly relevant to the appeal. In particular he criticises the following:

1. A statement that s.130(3) of the Act relates solely to prevention and is irrelevant to an obstruction that has already occurred;

2. A statement that s.143 notice can be served even if the removal is not reasonably achievable;

3. A statement that the Council could not exercise their s. 143 powers without first rejecting any outstanding application for a diversion;

4. A statement suggesting that magistrates proposing to act under s.137ZA of the Act do not have to consider whether the removal of the obstruction is reasonably achievable.

40. For my part I see some force in those criticisms but there is no need to consider them further.
41. I would therefore allow this appeal, quash the decision to submit the Order for confirmation and remit to the Council the question whether or not to submit the Order.

Lady Justice Arden :

42. I gratefully adopt the statement of the facts appearing in the judgment of Schiemann LJ.

Paragraph 6(a) of the Council's Guidelines

43. I agree with paragraph 34 of the judgment of Schiemann LJ. In my judgment, the proper interpretation of the Council's letter dated 28 July 2001 is that the Council considered that the convictions of Rarebargain on 20 March 2001 and 3 July 2001 and Orders for the removal of obstructions made by the Magistrates pursuant to section 137ZA of the Highways Act 1980 (as amended by the Countryside and Rights of Way Act 2000) were irrelevant. My conclusion is not affected by paragraph 16 of Mr Munn's first statement (set out by Schiemann LJ) which deals with the limited issue of whether the Council should have waited until the time for complying with the Orders had expired.
44. The letter of 28 July 2001 also states that "… action to enforce the section 143 notices was put in abeyance pending the outcome" of the application for a Diversion Order. The inference from this that the Council left those notices out of account too, and paragraph 16 of Mr Munn's first statement, set out by Schiemann LJ, is not inconsistent with that conclusion.
45. I agree with Dyson LJ that Guideline 6(a), which imposed a pre-condition to consideration of applications that the removal of the obstruction "is not considered reasonably achievable", required the Council to consider not simply the reasonable practicability as a physical operation of removing the obstructions, but also the legal routes available to reach that end. On this basis, the convictions and section 143 notices were not irrelevant matters.
46. The Magistrates had concluded that it was appropriate to require removal of the obstructions. To do this, they must have been satisfied that it was within Rarebargain's power to remove them for otherwise it would not have been a proper exercise of their powers under section 137ZA of the Highways Act 1980 (as amended by the Countryside and Rights of Way Act 2000). Rarebargain had neither appeared at the hearing before the Magistrates nor appealed against the Orders which the Magistrates imposed.
47. For the Council to treat the Orders of the Magistrates as irrelevant was, first, to ignore the role of the court, which was seized of a similar issue, and, second, to ignore the process which Parliament had introduced in 2000 by a provision which came into force on 30 January 2001. That gave Magistrates the power, exercisable in the usual way at the instance of individual members of the public, of requiring landowners who blocked footpaths to remove the obstruction. By not treating the existence and exercise of that power as relevant the Council were ignoring the process which the legislature had then so recently introduced. The section 143 notices were also significant because of the obligations they imposed on Rarebargain and the powers which the Council acquired in the event of non-compliance.
48. The Guidelines had been formulated in 1994 before the Highways Act 1980 was amended by the 2000 Act. It may be that, as section 137ZA was not the law when the Guidelines were formulated, the Council did not consider the power conferred by that section to be relevant to the expression "reasonably" achievable. However, the word "reasonably" is open-textured and dynamic. It requires considerations to be taken into account which are relevant at the time, not those which were relevant when the Guidelines were formulated. While I would not accept the submission of Mr George Laurence QC, for the appellant, that the first Order obtained by the appellant under section 137ZA of the 1980 Act (as amended) led to a situation where "the world changed", certainly I would accept as a general proposition that the rights conferred by the 2000 Act wrought a sea change in the law's approach to the rights of members of the public to reasonable enjoyment of the English countryside, even when in private ownership. The 2000 Act effected a rebalancing of private and social interests in land, to which, so far as the Act affected this matter, the Council was bound to pay regard.
49. I accept that the decision whether removal of the obstructions was reasonably achievable was a matter which the Guidelines remitted to the Council's judgment. However, in my judgment, it was wrong for the Council to ignore the Order reached by the Magistrates Court. Rather its obligation was to take its decision informed by that decision. However, the weight it gave to that matter was a matter for the Council, and in that respect I agree with Schiemann and Dyson LJJ.
50. In the judgment of Dyson LJ, the more flagrant the defiance of the law the greater the weight that should be given to deciding whether or not it is reasonable to require removal of the obstruction before an application for the diversion of the path is considered. I agree with him that an unwitting obstruction should carry less weight than a wilful and deliberate obstruction. However, the deciding factor in this case, in my judgment, is not the state of mind that accompanied the act of obstruction, but rather the existence of, and non-compliance with, the Orders of the magistrates. This was so even though the last date for complying with the Order for removal of the barn had not arrived.
51. I accept that the Council could properly have taken the view that it did not propose to enforce the section 143 notices which it had served some fifteen months previously and on that basis treated those notices as of little weight. However, the ability to implement those notices was in my judgment a consideration relevant to the determination of the issues required to be determined under Guideline 6(a) and those notices should not have been left out of account.

Paragraph 6(b)

52. I agree that this Guideline requires the safe alternative route to be available before the application for the Diversion Order is actually considered. On this point, I disagree with the judge's conclusion. However, in the light of the Court's conclusion on Guideline 6(a), it is unnecessary to deal with the parties' contentions on this point.
53. In the circumstances, I too would allow this appeal.

Rarebargain

54. The position of the Council is quite separate from that of Rarebargain. Rarebargain has not appeared in this appeal (and it did not appear below). On the face of it, it is indefensible for a landowner to take the law into his own hands and deliberately block a footpath rather than apply through the appropriate mechanisms for a Diversion Order. Of course, the landowner has to put up with people using the footpath in the meantime, but that is a necessary consequence of a democratic society.

Lord Justice Dyson :

55. I am grateful to Schiemann LJ for so fully setting out the facts in his judgment which I have seen in draft. I agree that the appeal should be allowed. I shall briefly set out my reasons.

Paragraph 6(a) of the Guidance Note

56. I agree with paragraph 31 of Schiemann LJ's judgment. It seems to me that the phrase "reasonably achievable" should be given a broad meaning. Relevant considerations should not be limited to technical matters of an engineering nature. The essential question for the Council is whether in all the circumstances it is reasonable to require the obstruction to be removed before an application to divert a path is considered. All of the considerations identified by Schiemann LJ are relevant. These include in a case such as the present the fact that the creation of the obstructions was deliberate, and the refusal to remove them was in flagrant defiance of the law. It is true in general terms that weight is a matter for the Council. But in my view, the Council should regard a calculated refusal to remove an obstruction that has been deliberately created by the landowner as a factor of considerable weight, tending to suggest that it is reasonable to require its removal before an application for the diversion of the path is considered. An accidental obstruction (eg, one caused by land slippage) should carry less weight in the mind of a rational and fair-minded Council than an obstruction wilfully and deliberately created and maintained by an owner consciously flouting the law, especially if the owner has a track-record of such conduct.
57. It, therefore, becomes necessary to examine the evidence to see whether, in reaching its decision, the Council did take into account the fact that the obstructions were deliberate and the refusal to remove them was in flagrant disregard of the section 143 notices and the Magistrates Court Order. There is no dispute that the obstructions in the present case had and continue to have that quality. The relevant evidence is to be found at paragraph 16 of Mr Munn's first witness statement (which has been set out in full at paragraph 21 of Schiemann LJ's judgment), and in a passage in the Assistant Director of Legal and Community Services' letter of 28 July 2001. The letter was written in response to a letter dated 10 July 2001 in which the Council was asked to exercise its powers of removal of the obstruction under section 64(4) of the Countryside and Rights of Way Act 2000 following the owner's conviction in the Magistrates Court. The key part of the letter is in these terms:

"As far as I can see, section 64(4) of the Countryside and Rights of Way Act 2000 is simply a reiteration of the powers to recover expenses which are already given to councils when they take action under section 143. If therefore such action is ultimately taken to remove obstructions pursuant to notices served by the Council in accordance with that section, then the Council already has those powers under section 143(2). However, the Council's approach has been made quite clear and the convictions under section 64 do not affect the legal process that the Council is pursuing.

I note that you make certain comments about the exercise of the Council's discretion. I believe, as I have said, that it is not unreasonable for the matter to proceed as I have indicated……"

58. There is nothing in this letter to indicate that the Council had weighed in the balance the deliberate nature of the obstructions or the flagrant refusal of the owner to comply with the section 143 notices and the Order of the Magistrates Court. On the contrary, I consider that, on a fair reading of the letter, the Council was saying that the convictions and the notices were irrelevant. I am reinforced in this conclusion by paragraph 16 of Mr Munn's statement. It is true that he refers to the Order of the Magistrates, but he does not say that the disobedience to this Order was taken into account by the Council, but that it was nevertheless decided for one or more reasons that the submission to the Secretary of State should go ahead. Still less does he identify any such reasons. In fact, paragraph 16 provides no clue as to why the Council thought that it was not reasonable to require removal of the obstructions before the submission was made. Mr Munn merely asserts that it was not thought reasonable to require removal before expiry of the Magistrates Court Order, and that the Council "based its decision on the facts of the case and on its normal guidelines".
59. I agree that the court should be slow to interfere with the way in which the Council exercises its discretion in applying the policy set out in its Guidance Note. But it seems to me that in the present case the Council failed to take into account a material consideration when it decided that the removal of the obstructions was not "reasonably achievable". I accept that it was open to the Council to decide in the light of all the circumstances that it was not reasonable to require the obstructions to be removed. The fact that the Magistrates Court had made the Order that it had made, and the Council had earlier served notices under section 143 did not preclude a submission to the Secretary of State while the path remained obstructed. Like Schiemann LJ, I would reject the submission of Mr Laurence QC that, in view of the section 143 notices served on 20 March 2000, and the decisions of the Magistrates Court on 20 March 2001, the Council was bound to conclude that it was reasonable to require the removal of the obstructions when it submitted the Order to the Secretary of State. It had a discretion, but in exercising its discretion, the Council had to take into account all material considerations. The refusal to comply with the notices and the Magistrates Court Order were material considerations. In the present case, where the obstructions were deliberate and the refusal to comply was deliberate and flagrant, it was a consideration of some importance which the Council had to weigh carefully in the balance. In my view, its failure to do so requires the decision to be quashed, and the matter remitted for reconsideration.

Paragraph 6(b)

60. For the reasons given by Schiemann LJ, since the decision must be quashed for failure to apply Para 6(a) of the Guidance Note correctly, there is no need to deal with the issues arising under para 6(b).