Neutral Citation Number: [2001] EWHC Admin 1128
IN THE HIGH COURT OF JUSTICE			         Case No: CO/524/2001

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London
WC2A 2LL

 Friday 7th December 2001
Before:
MR M SUPPERSTONE QC
(Sitting as a Deputy High Court Judge)
- - - - - - - - - - - - -
Between:
(1)	David Hargrave
(2)	Celia Hargrave
Claimants
- and -

Stroud District Council
Defendant
_________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
_________________

Mr Peter Birts, Q.C. and Mr Mantell Sayer (instructed by 
Ashton Graham & Co, Bury St Edmunds, for the Claimants)
Mr Douglas Edwards (instructed by
Giles Pink, Solicitor, Stroud D.C. for the efendant)
_________________

J U D G M E N T
The Deputy Judge:
INTRODUCTION
1.	This is an application for judicial review of the decision of the Development Control Committee of Stroud District Council (“the  Council”) made on 14 November 2000 not to refer the application by the Second Claimant, Mrs Hargrave, for a proposed footpath diversion of MPA 95 at Trench Hill, Painswick to the Secretary of State for Environment, Transport and the Regions (“the Secretary of State”).  Permission to apply for judicial review was granted by Turner J. on 9 May 2001.

2.	This case concerns the proper construction of Section 119(1) of the Highways Act 1980 (“the 1980 Act”).  The issue is whether Councils are obliged to refer diversion orders to the Secretary of State for confirmation if objections exist or whether they may withdraw the orders themselves in the light of such objections.

3.	I am informed by Mr Peter Birts QC for the Claimants that the point is an important one as Councils across the country commonly withdraw diversion orders in such circumstances, thereby acting, he submits, unlawfully.
THE BACKGROUND

4.	The Second Claimant is the owner and the Claimants are the occupiers of a property known as Trench Hill at Painswick in the County of Gloucestershire over which there is a public right of way on foot.  The footpath, which is used frequently, passes close to the Claimants’ dwelling such that their private enjoyment of their property is diminished by the presence of the public.  Further they fear that their property may be studied by prospective thieves.  They therefore desire to move the route of the footpath.  Their first attempt to do so failed. After taking legal advice they decided to try again.  By a letter from her solicitor dated 15 October 1999 the Second Claimant re-applied to the Council for a diversion of the path on the basis that the diversion was expedient in her own interests within Section 119 of the 1980 Act. 

5.	The application was followed by a letter dated 25 October 1999 from PC N.  Penmore, Crime Prevention Officer of the Gloucester Constabulary, in which he set out the security advantages of the proposed diversion.  He wrote to the First Claimant:

	“...I confirm that from a Crime Prevention point of view it would be advantageous to re-route the public footpath that currently runs through the centre of your garden and between your house and garage to an alternative route.  

	The proposed alternative route that you showed me offers significant advantages over the existing route without, in my opinion, causing walkers inconvenience ...”

	The main advantages [include]
	A reduction in the fear of crime being experienced by Mrs Hargrave particularly when alone at the Property - (understandable considering previous criminal incidents at the address).

6.	During the consultation process the Council received thirtyfour letters of support and four letters of objection to the proposed diversion.  In essence the letters of objection made four points:

	(i)	This is an ancient right of way and Painswick Parish Council said, “In general [we are] against the re-routing of any of our ancient footpaths”.

	(ii)	Mr and Mrs Hargrave must have been well aware of the route of this public footpath when they purchased the property.  

	(iii)	It is not thought that potential thieves will be put off by the proposed diversion.

	(iv)	It was accepted, at least by Painswick Parish Council, that the proposed diversion would cause walkers very little inconvenience.

7.	On 2 May 2000 a report by the Council’s Director of Corporate Services and the Solicitor to the Council was placed before the Council’s Planning Executive Sub-Committee, which resolved in principle:

	“(a)	That the Council makes an order under the provisions of Section 119 of the Highways Act 1980 for the diversion of public footpath MPA 95 at Trench Hill, Painswick in the manner described in the following report.

	(b)	That in the event of no objections being received or of  all objections being withdrawn authority be delegated to the Solicitor to the Council to confirm the Order as an unopposed Order.  If any objections are received and not withdrawn then they will be reported to the Sub-Committee for further consideration.

	(c)	That if all parties agree mediation takes place in accordance with the Planning Inspectorate’s “Mediation: A New Option for Settling Rights of Way Disputes” Pilot Study”.  

8.	On 14 November 2000 a report by the Director of Corporate Services (“the Director”) was placed before the Council’s Development Control Committee containing an Officer Recommendation that having considered the contents of the objections received the application be referred to the Secretary of State for confirmation.   In paragraph 11 of the report the Director says:

		“Having considered the objections and corresponded with the objectors I have concluded that there is little or no chance of any form of negotiated settlement being achieved that would be satisfactory to both parties.  Further, given that there appears to be such strong local feeling on both sides I feel that there is no alternative but to refer this matter to the Secretary of State for determination on whether the Order should be confirmed.”

9.	Paragraph 12 of the Report states:

		“Legal implications 
		The Council cannot confirm an Order made under Section 119 that has been opposed and where the objections have not been withdrawn.  The Council may either refer the matter to the Secretary of State for the Department of Transport Environment and the Regions for confirmation which may result in a Public Inquiry or not refer the matter at all at which point the application fails at this stage.”

10.	The decision of the Council’s Development Control Committee was not to refer the Order to the Secretary of State.

11.	On 24 November 2000 the Claimants’ Solicitor requested the Council’s Acting Solicitor to refer the matter back to the Development Control Committee for reconsideration.  On 5 December 2000 the Council’s Acting Solicitor refused the request, stating that the Council had a discretion not to refer the Order to the Secretary of State and inviting the Claimants to apply directly to the Secretary of State for a diversion order under Section 120(3) of the 1980 Act. 

THE STATUTORY FRAMEWORK

12.	Part VIII of the 1980 Act is concerned with stopping up and diversion of highways and stopping up of means of access to highways.  The material provisions are as follows:

		“118 Stopping up of Footpaths and Bridleways
		(1)	Where it appears to a council as respects a footpath or bridleway in their area (other than one which is a trunk road or a special road) that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the path or way.  

			An order under this section is referred to in this Act as a “public path extinguishment order”.

		(2)	The Secretary of State shall not confirm a public path extinguishment order, and a council shall not confirm such an order as an unopposed order, unless he or, as the case may be, they are satisfied that it is expedient so to do having regard to the extent (if any) to which it appears to him or, as the case may be, them that the path or way would, apart from the order, be likely to be used by the public, and having regard to the effect which the extinguishment of the right of way would have as respects land served by the path or way, account being taken of the provisions as to compensation contained in Section 28 above as applied by Section 121(2) below.

		(4)	Schedule 6 to this Act has effect as to the making, confirmation, validity and date of operation of public path extinguishment orders.

		119  Diversion of footpaths and bridleways

		(1)	Where it appears to a council as respects a footpath or bridle way in their area (other than one that is a trunk road or a special road) that, in the interests of the owner, lessee or occupier of land crossed by the path or way or of the public, it is expedient that the line of the path or way, or part of that line, should be diverted (whether onto land of the same or of another owner, lessee or occupier) the council may, subject to subsection (2) below, by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, - 

			(a)	create, as from such date as may be specified in the order, any such new footpath or bridleway as appears to the council requisite for effecting the diversion, and

			(b)	extinguish, as from such date as may be so specified in accordance with the provisions of subsection (3) below, the public right of way over so much of the path or way 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”.

		(2)	A public path diversion order shall not alter a point of termination of the path or way - 

			(a)	if that point is not on a highway, or

			(b)	where it is on a highway otherwise than to another point which is on the same highway, or a highway connected with it, and which is substantially as convenient to the public.

		(5)	Before determining to make a public path diversion order on the representations of an owner, lessee or occupier of land crossed by the path or way, the council may require him to enter into an agreement with them to defray, or to make such contribution as may be specified in the agreement towards, -

			(a)	any compensation which may become payable under Section 28 above as applied by Section 121(2) below, or

			(b)	where the council are the highway authority for the path or way in question, any expenses which they may incur in bringing the new site of the path or way into fit condition for use by the public, or

			(c)	where the council are not the highway authority, any expenses which may become recoverable from them by the highway authority under the provisions of Section 27(2) above as applied by subsection (9) below.

		(6)	The Secretary of State shall not confirm a public path diversion order, and a 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 sub-section (1) above, and further that the path or way 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 or way as a whole,

			(b)	the coming into operation of the order would have as respects other land served by the existing public right of way, and 

			(c)	any new public right of way created by the order would have as respects the land over which the right is so created and any land held with it, 

			so, however, that for the purposes of paragraphs (b) and (c) above the Secretary of State or, as the case may be, the council shall take into account the provisions as to compensation referred to in subsection (5)(a) above.

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

		120 	Exercise of powers of making public path extinguishment and diversion orders

		(3)	Where it appears to the Secretary of State as respects a footpath or bridleway that it is expedient as mentioned in Section 118(1) ... above that the path or way should be stopped up ..., or where an owner, lessee or occupier of land crossed by a footpath or bridleway satisfies the Secretary of State that a diversion of it is expedient as mentioned in Section 119(1) above, then if -

			(a)	no council having power to do so have made and submitted to him a public path extinguishment order ... or a public path diversion order, as the case may be, and

			(b)	the Secretary of State is satisfied that, if such an order were made and submitted to him, he would have power to confirm the order in accordance with the provisions in that behalf of Sections 118 (and 119) above, 

			he may himself make the order after consultation ... with the appropriate authority.”

13.	Part 1 of Schedule 6 to the 1980 Act contains the procedure for making and confirming certain orders relating to footpaths and bridleways.

14.	Diversion may be achieved either by Section 119 or by concurrent orders for creation and extinguishment (or stopping up) under Sections 26 and 118(5) of the 1980 Act respectively.  The present case is only concerned with Section 119.   Section 119(2) does not arise for consideration.

THE ISSUES

15.	In their skeleton arguments Mr Birts and Mr Douglas Edwards, on behalf of the Council, identify three issues that arise on this application:

	(1)	Whether this application should be refused because it has not been brought promptly under CPR 54.5(1)(a).

	(2)	Whether, once a diversion order has been made by a Council under Section 119(1) of the 1980 Act and it appears to the Council that in the interests of the owners of the land crossed by the path it is expedient that the line of the path be diverted, the Council is then under a duty to refer it to the Secretary of State for confirmation, or whether it has a discretion not so to refer it.  

	(3)	If and insofar as a Council has a discretion not to refer it, how that discretion should be exercised, and how it should have been exercised in the present case.

Issue (1): Delay

16.	Mr Edwards decided sensibly, in my view, not to pursue any argument at this hearing on the basis of any lack of promptness or undue delay by the Claimants in bringing their claim.

Issue (2): Duty or discretion

17.	The submissions made by Mr Birts for the Claimants essentially involve the following four propositions:

	(i)	A diversion order under Section 119 is the subject of two separate and distinct statutory tests, to be applied by separate statutory bodies, although there is overlap if the order is unopposed.  These may be described as “the order-making test”, on the one hand and “the confirmatory test”, on the other.  

	(ii)	The test the Council had to apply when considering the Second Claimant’s application was the order-making test: whether it appeared to the Council that in her interests as owner of the land crossed by the path, it was expedient that the line be diverted (S 119(1)).
	(iii)	Parliament did not intend to burden the order-making authority with any greater or more extensive considerations than those set out in Section 119(1).  The Council, in considering whether to make an order, should not give consideration to any of the elements of the confirmatory test set out in Section 119(6).  They only arise at the stage of confirmation.  

	(iv)	Once the Council has made a diversion order it must (save perhaps in exceptional circumstances which do not arise in the present case) submit the order to the Secretary of State for confirmation.  The existence of objections is no ground for not so doing.  Exceptional circumstances might be if a change of circumstances occurred after the making of the order which made it no longer appear to the Council expedient in the owners’ interests to make the diversion.

18.	Mr Edwards for the Council submits that the use of the word “may” in Section 119(1) is only consistent with the existence of a discretion on the part of a local authority as to whether to send a diversion order to the Secretary of State for confirmation.  He submits that Section 119(1) involves a two stage decision-making process by a local authority. First, the local authority have to consider whether the making of the order is expedient in the interests of either an owner, lessee or occupier or of the public.  If that decision is taken affirmatively, then the order is made.  Second, the local authority then have to consider whether to refer the order to the Secretary of State for confirmation.  Mr Edwards submits the discretion whether or not to refer the diversion order to the Secretary of State for confirmation is independent of the original decision to make the diversion order on grounds of expediency.

19.	In my judgment the language of Section 119 of the 1980 Act is clear.  The use of the word “may” plainly indicates the existence of a discretion.  There is no justification  for interpreting the word “may” as if it were “must”.  I accept the submissions of Mr Edwards.  The Council has a discretion when deciding whether or not to make a diversion order.  If it does make such an order it has a further discretion as to whether or not to refer the order to the Secretary of State for confirmation.  

20.	The existence of a discretion to refer the diversion order to the Secretary of State is recognised in paragraph 3 of Annex C to Department of Environment Circular 2/93 which states:  

		“... Since there is no statutory requirement that opposed orders must be sent to the Secretary of State, authorities appear to have the discretion not to proceed.  However, because the statutes do not authorise the withdrawal of orders, a formal resolution by the authority not to proceed is considered to be necessary to bring the procedure to an end ...”

21.	The Public Path Orders Regulations 1993 (“the 1993 Regulations”) are also consistent with this interpretation of Section 119(1).  These Regulations prescribe the procedures for the making and confirmation of, inter alia, public path diversion orders made pursuant to Section 119.  Regulation 4 sets out the procedure to be followed for confirmation of the order:

		“(1)	An order shall be made in duplicate and, where the order is submitted to the Secretary of State for confirmation, the order and duplicate shall be sent to him accompanied by:

			(a)	two copies of the order,
			(b)	a copy of the notice given before submission as required by Schedule 6 to the Act,
			(c)	a statement of the grounds on which the authority consider that the order should be confirmed,
			(d)	any representations or objections duly made with respect to the order and not withdrawn, together with any observations on them of the authority, and

			(e)	in any case in which the authority is required to obtain the consent of, or to consult with, any other authority or body before the order is made, a certificate by the authority that such consent has been obtained or such consultation has taken place together with a statement of the nature and the effect of such consultation.”

22.	I accept Mr Edwards’ submission that Regulation 4(1)(c) envisages that an order making authority will support confirmation of the order which it has forwarded to the Secretary of State.  An authority would not be in a position to meet this mandatory requirement where it no longer supports the order which it has made.  Mr Edwards submits that therefore the 1993 Regulations envisage some other procedure in such circumstances.  He says in the absence of an express power to withdraw an order which has been made, that procedure is to be implied from the existence of a discretion not to send an order for confirmation.  I agree.  

23.	The leading textbooks on highway law to which I have been referred also support the existence of a discretion to refer the diversion order to the Secretary of State for confirmation.  Mr Stephen J. Souvain QC in Highway Law (2nd ed, 1997) at para 9-37, footnote 89 says:

		“If, in the light of opposition, the authority decide not to proceed then there is no obligation to forward the opposed order to the Secretary of State.”

	The Rights of Way Law Review is similarly of the view that the authority has a discretion not to refer an order to the Secretary of State where there are objections.  (S.7 Annexe, S.119 HA 1980, April 1997, page 6, Step 12).

24.	Mr Edwards drew my attention to Section 52 of and Sch 15 to the Wildlife and Countryside Act 1981.  Those provisions relate to modifications by highway authorities of definitive maps.  Section 53(2) provides for the modification of definitive maps where any of the “events” in subsection (2) are met.  Paragraph 2 of Schedule 15 sets out the procedure for the making of such orders which do not take effect until confirmed by the Secretary of State. Paragraph 7(1) of Schedule 15 provides as follows in respect of opposed orders:

		“If any representation or objection duly made is not withdrawn the authority shall submit the order to the Secretary of State for confirmation by him.”

	Mr Edwards properly contrasts the use of the word “shall” in this legislation with the use of the word “may” in Section 119(1) of the 1980 Act.
 
25.	Counsel agree that there is no direct authority on Section 119(1) of the 1980 Act as to the existence of a discretion to refer a diversion order to the Secretary of State.  The only judgment that the parties referred to in this connection was R v Bath City Council ex p. Master Co. Brethren (1999) EWHC 44 (13 July 1999).  That case concerned the decision of the respondent authority not to submit an Extinguishment Order to the Secretary of State with a view to its confirmation in accordance with the provisions of Section 118 of the 1980 Act.  I shall return to this case in relation to Issue (3) below.  In the present context it is to be noted, as Mr Edwards points out, that the existence of a discretion to refer was assumed, although not conceded, by the parties before Ognall J for the purposes of the argument before the Learned Judge.  This authority therefore provides little assistance.

26.	Mr Birts relies on certain observations made by Collins J in R v Secretary of State for the Environment ex p. Patterson (CO 4224-96, 9 June 1997) which suggest that if a diversion order is made and there is opposition to the order, it must be referred to the Secretary of State.  However, in that case no order was made under S.119(1) by the Council.  The Learned Judge’s observations were made during the course of an exchange with leading counsel for the applicant on an application for permission to bring judicial review proceedings against the Secretary of State for the Environment challenging his decision not to make a diversion order under Section 120(3) of the 1980 Act.  Neither the Secretary of State nor the Council were represented at the hearing and no judgment was delivered.

27.	By letter dated 9 February 2001 the Claimants made an application to the Secretary of State under Section 120(3).  However, it is clear from the letter dated 26th February 2001 from Mrs L Saunders on behalf of the Secretary of State to the Claimants’ solicitors that the Secretary of State’s powers to make public footpath orders are used “only exceptionally”.   The letter notes:

“The Secretary of State’s powers are not intended to provide an alternative to those held locally nor are they intended to operate as an appeals system against the decision of the local authority.”

	A decision of a Council not to submit to the Secretary of State an order made under Section 119(1) may be challenged by way of judicial review.   

28.	Mr Birts makes two further submissions.  First, he referred me to the common law position before Parliament introduced legislation governing highway diversion applications.  He submits that it cannot have been the intention of Parliament to remove the deep-rooted common law right to a public inquiry or hearing before an application is dismissed.  Mr Birts argues that if the Council is allowed not to refer an order once made on the ground of objections received it is denying the applicant and all interested parties the fair hearing and natural justice afforded by a local inquiry.  In my judgment reference to the earlier common law position does not assist in the interpretation of the modern procedure introduced by Parliament in the Highway Acts.

29.	Second, Mr Birts raises human rights issues.  Paragraph 33 of the Claimant’s detailed statement of grounds for judicial review states:

	“The Defendant’s failure to consider the human rights implications of the decision not to refer the order to the Secretary of State, despite an officer’s recommendation to do so, amounts to a violation of the Claimant’s human rights, as does the decision itself.”

	The Claimants contend that the Council has acted in breach of Articles 6.1, 8 and Article 1 to Protocol 1 of the European Convention on Human Rights.  

30.	However the Claimants’ skeleton argument makes no reference to these matters; and paragraph 24 of their additional submissions merely refers back to paragraph 33 of their detailed statement of grounds.  Mr Birts submitted that a construction of S.119(1) that gave to the Council a discretion not to refer an order to the Secretary of State was contrary to natural justice and in breach of the Human Rights Act 1998.   He submitted this was so because the Claimants were denied a public inquiry (that would have taken place if the order had been referred to the Secretary of State) or any hearing.  Mr Birts did not refer to any authorities in support of these submissions.

31.	In my judgment an interpretation of Section 119(1) of the 1980 Act which gives the Council a discretion not to refer a diversion order that has been made to the Secretary of State for confirmation is not inconsistent with the Human Rights Act.  The Council followed the procedure prescribed by Parliament in Part 1 of Schedule 6 to the Act.  The absence of a public inquiry or a hearing did not result in any breach of the Human Rights Act.  

Issue (3): Parameters and exercise of discetion

32.	On the assumption that the Council has a discretion not to refer the order to the Secretary of State Mr Birts submits that (i) the discretion is limited to the Section 119(1) question, namely, he says, whether it is in the interests of the owner expedient that the path should be diverted, and (ii) there were no rational grounds for the Council not to refer the order to the Secretary of State.

33.	In response Mr Edwards submits that it is appropriate for considerations arising out of objections made to a diversion order to be taken into account by the Council when considering whether to refer the order to the Secretary of State for confirmation.  He submits that this is so even though those considerations fall within the range of issues to which the Secretary of State is also required to have regard by virtue of Section 119(6) of the 1980 Act.  Further he submits the decision of the Council was lawful, having been taken on rational grounds.

The parameters of the discretion

34.	In my judgment Section 119(1) operates in the following way:

	(i)	The sub-section is triggered where it appears to a council that on the facts of a case such as the present it is expedient in the interests of the owner that the path be diverted.  This is a low threshold
	(ii)	Once the Council’s powers are engaged the word “may” suggests that it has a very broad discretion.  All factors relevant to the exercise of the discretion may be taken into account.

	In the present case we are only concerned with the stage when the Council takes the decision whether or not to refer the order to the Secretary of State.  However in my view Section 119(1) operates in the same way at the prior order-making stage.

35.	This interpretation of Section 119(1) accords with the practice to which I have been referred.  In Rights of Way (see above), in a reference to Section 119(6), there is the following passage:

	“Although these tests are, according to the Act, to be applied only at the confirmation stage, it would clearly be nonsensical for a council not to take them into account before deciding whether to make the order in the first place.  It is submitted that, therefore, diversion orders should seek to ensure a balance between, on the one hand, the interests of the public, as users and on the other, the interests of the owner, lessee or occupier of the land.” (page 166).

	In, Rights of Way Law Review (see above), in a section considering whether the proposal to make the order passes the tests required by the 1980 Act, it is stated

	“S.119(6) provides that before confirming the Order the Secretary of State or the authority, as the case may be, shall consider whether the diversion is expedient ... and in addition should be satisfied that the new path “will not be substantially less convenient to the public”.  However, it is recommended that both these tests are considered by the authority when deciding whether to make the Order, or not.  This will prevent waste of time and money if the test fails at the confirmation stage.” (Page 12)

36.	In support of his submission that such practice is unlawful Mr Birts         refers to the observations of Collins J in R v Secretary of State for the Environment ex p. Patterson, in particular where the Learned Judge commented:

		“...It is no business of the council to consider is it, the balance between the public and the owner, unless the council is thinking of confirming it as an unopposed order, otherwise, the council has a duty to make the order and then it is for the Secretary of State to consider whether it should be confirmed by him and, at that stage, there comes in the question of an inquiry or whatever, if there is opposition?” (p.3 E-F; see also p.3 G - p.4 B and p.4 E-F).

	Mr Birts also relies upon passages in the judgment of Ognall J in R v Bath City Council ex p. Master Co. Brethren where there are similar comments in the context of the operation of Section 118 of the 1980 Act.  The Learned Judge concluded:

		“... that the Respondents effectively adopted the role of the Secretary of State, as conferred upon him under S 118(2) of the Act, but without the safeguards consequent upon his duty to invite, to receive and to consider representations from all persons or bodies, whether by local enquiry or otherwise, before deciding whether to confirm the Extinguishment Order.  In my judgment to do so was to misdirect themselves as to the true scope of their duty.” (para 33).

37.	I have already noted the circumstances in which Collins J made his observations in R v Secretary of State ex p. Patterson (see para 26 above); and  Mr Birts accepts that the passages on which he relies in R v Bath City Council ex p. Master Co. Brethren are obiter.  Further it appears from the transcript of ex p. Master Co. Brethren that the question as to whether a discretion existed whereby an order making authority may not refer an order to the Secretary of State for confirmation was raised in the application for leave to apply for judicial review, but leave was not granted in respect of that ground.  There was no argument thereon before the Learned Judge  (paras 20 and 21 of the Decision).   Further, as Mr Edwards points out, the application appears to have proceeded on the basis that, in exercising its discretion, the Council failed to have regard to a relevant consideration, namely that by resolving not to refer the order for confirmation, petitioners for the order would be denied an opportunity to attend a pubic inquiry.  (Paras 25 and 30-32 of transcript.)  The claim was not argued on the basis that the discretion was exercised by the Council unlawfully by consideration being given to factors which should only have been taken into account by the Secretary of State at the confirmation stage.

38.	In my judgment, it does not follow that because Section 119(6) requires the Secretary of State (when the order is opposed) and the council (when the order is unopposed) to have regard to certain factors on confirmation that they are not relevant factors to which the council may have regard when deciding whether to make the order in the first instance or to refer it to the Secretary of State thereafter. 

Exercise of discretion
39.	Schedule 6 to the 1980 Act contains statutory publicity requirements to be carried out by a council after a diversion order has been made and before a decision is taken as to whether or not the order should be submitted to the Secretary of State for confirmation.  

40.	In the present case the Claimants sought a mandatory order directing the Council to give public notice of the diversion order it made, including notice as to the making of representations.  However, during the course of this hearing Mr Edwards produced a copy of Appendix C to the Report of the Director of Corporate Services of the Council dated 14 November 2000 which had not been included in the Court bundle.  As the Report indicates Appendix C contains copies of objections received by the Council after the making of the order, together with subsequent correspondence.  It is clear from that documentation that the Council did comply with the requirements of Part 1 to Schedule 6 of the 1980 Act and Mr Birts accepted that that was so.  

41.	The basis of the decision taken by the Council’s Development Control Committee on 14 November 2000 is recorded in the Minutes as follows:

	“The report of the Director of Corporate Services ... was received.   

	A Ward Councillor spoke against the proposed footpath diversion. She advised that the current route was an ancient footpath and track which was clearly shown on old maps and the proposed diversion was a longer and more muddy route.  Although she sympathised with the owners she emphasised that they were aware of the existence of the footpath when they purchased the house.  She was concerned that diversion of this footpath could set a dangerous precedent.

	Resolved:
	That the application for the proposed footpath diversion of MPA 95 at Trench hill, Painswick not be referred to the Secretary of State for Environment, Transport and the Regions.”

42.	The Committee so resolved despite the recommendation of the Director of Corporate Services in his report that the matter should be referred to the Secretary of State for confirmation The objectors were unwilling to withdraw their objections or to negotiate a modified diversion and the Director noted that there appears to be “strong local feelings on both sides”  (para 11).  The letters of objection together with subsequent correspondence contained in Appendix C to his report were received by the Committee and Mr Birts did not suggest the Committee failed to have regard to them.  Indeed it was his case that they should not have done so.  The objections raised a range of issues including the grounds that the proposed diversion was substantially less convenient for the public and that it would have a detrimental effect on public enjoyment of the path as a whole.  

43.	The main thrust of the Claimant’s challenge was first, that the Council was under a duty to refer the order to the Secretary of State for confirmation, and second, if and insofar as the Council had a discretion not to refer, such a discretion was limited and did not extend to consideration of factors to which the Secretary of State is required to have regard by virtue of S.119(6) of the 1980 Act.  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.

SUMMARY

44.	In my judgment (1) the Council was not under a duty to refer the diversion order to the Secretary of State for confirmation; (2) it had a discretion to have regard to all relevant factors, which included those to which the Secretary of State is required to have regard by virtue of S.119(6) of the 1980 Act; and (3) the Council did not exercise its discretion irrationally.

45.	Accordingly this application for judicial review fails.

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THE DEPUTY JUDGE: For the reasons set out in my draft judgment this application fails.
MR EDWARDS: Most obliged, my Lord. That leaves the question of costs.
THE DEPUTY JUDGE: Yes.
MR EDWARDS: In my submission, this is an appropriate case for summary assessment and I understand my learned friend agrees.  I hope that a schedule of costs has been provided to your Lordship.
THE DEPUTY JUDGE: Yes, that has been provided and I have seen it.  There should be some deduction, Mr Edwards, should there not, for the costs incurred on the delay issue before you abandoned it?
MR EDWARDS: Yes, my Lord.  I accept the matter was abandoned and perhaps it is a matter for my learned friend as to what the deduction should be.
THE DEPUTY JUDGE: Most certainly.
MR EDWARDS: My Lord, can I just mention two detailed matters on the schedule, my Lord, I think I need to deal with for assessment.
THE DEPUTY JUDGE: Certainly.
MR EDWARDS: The first, my Lord, is on the second page of the schedule.
THE DEPUTY JUDGE: Yes.
MR EDWARDS: My Lord, on the second page of the schedule the second heading is "Agent's fees".
THE DEPUTY JUDGE: Yes, I have it. 
MR EDWARDS: You will see at the bottom of that entry there is a reference to two hours at £100 an hour.  We do not anticipate this hearing taking two hours.
THE DEPUTY JUDGE: I think not.
MR EDWARDS: So we would ask that your Lordship reduces that to one hour, so the total will be £100.
THE DEPUTY JUDGE: Certainly.  So the grand total, reduced accordingly to £5,846.
MR EDWARDS: My Lord, there is a second point.  Your Lordship will see that there is a claim made in respect of VAT.  I have discussed the matter with Mr Birts, and generally speaking, the local authorities can claim VAT back through their own channels with the Customs and Excise.  I have not been able to take valid instructions about removing that entry, but what we would ask your Lordship to do is to exercise the power to make that conditional on the local authority to providing a certificate stating whether or not they can recover it through the usual channels.
THE DEPUTY JUDGE: So what is the precise form of order that you are seeking?
MR EDWARDS: My Lord, the order that we are seeking is that the payment of VAT elements of the costs be conditional upon the defendants filing a certificate regarding recoverability within seven days of this judgment.  I take that form of wording directly from Butterworths on costs.
THE DEPUTY JUDGE: Yes.
MR EDWARDS: My Lord, that is the position. 
THE DEPUTY JUDGE: Thank you very much. Mr Birts, in principle?
MR BIRTS QC: My Lord, in principle, yes, we agree.  We agree with all those points.  On the delay, my Lord, I am grateful to your Lordship, we would submit that it would be fair to deduct 25 per cent off the bill for the issue of delay which did occupy quite a lot of argument on paper and preparation.
THE DEPUTY JUDGE: Argument on paper, but not in court.
MR BIRTS QC: Not in court, no.
THE DEPUTY JUDGE: Part of the skeleton argument.
MR BIRTS QC: Yes.  My Lord, it was in the original opposition, if you remember.  It was raised right at the start by Turner J.  It was taken up by my learned friends in their acknowledgment of service, well actually they raised it first in the acknowledgment of service, Turner J took it up.  It was then continued through the paper process and was dealt with fairly extensively in the skeleton arguments and in the additional arguments, if my Lord will remember.
THE DEPUTY JUDGE: Yes.
MR BIRTS QC: But it is quite right it was abandoned on Friday afternoon and my friend telephoned me and let the court know it was abandoned.  But until then it was occupying a fairly prominent position and caused us quite a lot of concern, obviously, and work.  So we would ask for some deduction.  I ask for 25 per cent, if your Lordship has other ideas or my friend has other ideas, perhaps I could be heard on them if they are against 25 per cent. 
THE DEPUTY JUDGE: Certainly. Mr Edwards?
MR EDWARDS: No, Mr Lord. I do not dispute that.
THE DEPUTY JUDGE: You do not.
MR EDWARDS: We are content for the deduction of 25 per cent.
THE DEPUTY JUDGE: I wonder whether someone could do the maths on the sum and then I can state the sum.
MR BIRTS QC: Yes, my Lord, there are other applications.
THE DEPUTY JUDGE: Certainly.  Can you agree the figure on costs?  Perhaps you can be, or your instructing solicitor, can be working on that.
MR EDWARDS: Of course, my Lord.
THE DEPUTY JUDGE: Yes.
MR BIRTS QC: My Lord, while I am making applications perhaps that can be done.  Your Lordship heard, and stated in your Lordship's judgment, that this was a point, is a point, of considerable general importance.  It has countrywide impact so far as these applications for diversion and extinguishment are concerned.  It is a point which has exercised a lot of people over a lot of time and your Lordship may think from the length of your judgment that there are good arguments on both sides.  We would ask for permission to appeal.  It is an enormously important point and, with respect, if that is the statute's interpretation, which we would say has a very significant effect on the shift of the responsibility from the Secretary of State to the local authority level in deciding these applications then really it ought to be authoritatively either upheld or  otherwise looked at by the Court of Appeal.  We would ask your Lordship for permission to appeal.
THE DEPUTY JUDGE: No, Mr Birts.  I accept this case raises an important point, however, in my view the construction of the relevant section is clear and, therefore, I refuse leave.
MR EDWARDS: My Lord, my instructing solicitor has calculated the sum with the 25 per cent reduction, the total will be £4,384.50.
THE DEPUTY JUDGE: Mr Birts, you have been on your feet, but does that look right?
MR BIRTS QC: My Lord, I do not know.  I am sorry.  If it has been checked, if it is wrong then no doubt‑‑‑‑
THE DEPUTY JUDGE: Then that can be amended.
MR EDWARDS: It has been done on a calculator.
MR BIRTS QC: Sorry, how much it is?
MR EDWARDS: £4,384.50.
MR BIRTS QC: Including VAT?
MR EDWARDS: That is including VAT.
MR BIRTS QC: My Lord, may I have an extension of time?  May I have a stay on that sum for 28 days to allow me to make an application for permission to the Court of Appeal?
THE DEPUTY JUDGE: So you are asking for a stay in relation to that sum?
MR BIRTS QC: In relation to the costs because under the new rules they are payable within 14 days unless you ask for a stay. 
THE DEPUTY JUDGE: Yes.  Mr Edwards?
MR EDWARDS: We do not dispute that.
THE DEPUTY JUDGE: Well, I order the defendants to have their costs in the sum of £4,384.50; there to be a stay of 28 days; and payment of the VAT element of costs to be conditional on the filing of a certificate of recoverability within seven days of judgment.  Thank you both very much.
MR BIRTS QC: I am obliged.
THE DEPUTY JUDGE: Mr Edwards, I should have said thank you very much for pointing out the minor amendments and the draft will be amended accordingly.
 
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