England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand London WC2LL 2LL
		Monday, 25th March 2002

1. MR JUSTICE CRANE: This is an application for judicial review to quash a decision of the West Dorset District Council made on 30th April 2001 not to make a public path diversion order sought by the claimant. In view of certain agreements between the parties the issues have been limited. I can therefore deal with the facts relatively shortly.
2. The claimant is the owner of a property called Wallhayes at the village of Nettlecombe near Bridport in Dorset. Over part of his property there is a public right of way on foot, labelled Footpath 32 on the definitive map. This footpath is said by the claimant to diminish the private enjoyment of his property. He therefore submitted an application pursuant to Section 119 of the Highways Act 1980 for a public path diversion order on 11th August 1998. The application was subsequently amended in ways that no longer require description.
3. I refer to the plan in the papers marked "Preferred Plan". Footpath 32 starts at point A on that plan and runs in a north-westerly direction past point B, then across the claimant's property to point C on an unclassified road through the village. On the definitive map, since 1973 a further footpath or section of footpath, also labelled Footpath 32, runs from the other side of the latter road to a point D and indeed beyond. There is also near the village of Nettlecombe a footpath labelled 29. It starts on the same unclassified road as point A, also runs north-west and reaches another of the village roads at point H.
4. By the time the matter came before the committee the claimant's case was put on the basis that instead of the route A, B, C, D a walker should have available the route A, G, H, J, D. In both cases a walker could have ended his or her walk at point B, having set off from point A. The description inevitably can be better understood by reference to the plan.
5. I turn to the relevant statutory provisions. Section 119 of the Highways Act 1980, as mended by the Wildlife and Countryside Act 1981 is entitled "Diversion of footpaths and bridleways". Section 119 (1) reads, in its amended form:

"Where it appears to a council as respect a footpath or bridleway in their area (other than one that is a trunk road or special road) that, in the interests of the owner, lessee or occupier of the 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 on to land 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 it was 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 sub-section (3) below, a 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'."

6. Sub-section (2) reads:

"A public path diversion order shall not alter a point of termination of a 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, which is substantially as convenient to the public."

7. Sub-section (6) reads:

"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 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 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, for the purposes of paragraph (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 sub-section (5) (a) above."

8. Then sub-section (7) reads:

"A public path diversion order shall be in such form as may be prescribed by regulations made by the Secretary of State and should contain a map, on such scale as may be so prescribed, -

(a) showing the existing site of so much of the line of the path or way as is to be diverted by the order and the new site to which it is to be diverted,

(b) indicating whether a new right of way is created by the order over the whole of the new site or whether some part of it is already comprised in a footpath or bridleway, and

(c) where some part of the new site is already so comprised, defining that path."

9. Sub-section (8):

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

10. Section 329 (1) reads so far as is relevant:

"In this Act, except where the context otherwise requires -

.....

`footpath' means a highway over which the public have a right of way on foot only, not being a footway."

11. The scheme of the Act for public path diversion orders is that the relevant council decides in accordance with sub-section (1) of Section 119 whether to make an order. If an order is made it then is required to be advertised and notified in various ways. If there is opposition the Secretary of State is required to take a decision which will involve reference to an inspector for the purpose of an inquiry. If the order is not opposed at that stage the council can confirm the order as an unopposed order. The hearing that took place at the stage when consideration was being given to the making of the order in the first place is not in terms required by Schedule 6. I do not intend by saying that to discourage, in any way, the very proper practice of giving those concerned the opportunity of making submissions at that initial stage.
12. The decision of the committee was criticised principally on the basis that they took into consideration whether the proposed diversion would or would not be substantially less convenient to the public in consequence of the diversion, a consideration relevant under sub-section (6) but not under sub-section (1). In the acknowledgement of service the defendant submitted that this was a case in which sub-section (2) (b) applied and that the committee should have considered at least the question of "point of termination". The parties discussed the matter particularly in the light of the decision of the Court of Appeal in Cowl v Plymouth City Council [2001] EWCA civ.1935.
13. I am told by counsel that the West Dorset District Council offered to consider a new application by this claimant. The court is therefore invited simply to resolve two questions set out in the "joint agreed statement of issues" presented to the court. The two issues are these:

(a) On the proper construction of the Highways Act 1980, and in particular Sections 328 and 329, and for the purposes of Section 119 (2), is a point of termination of a footpath fixed at each and every point which it transcends a highway or bridleway (or indeed any other way carrying greater or different rights to pass)?

(b) On the proper construction of Section 119, having regard to the decision in R v Lake District Special Planning Board ex p Bernstein made on 29th January 1982, was the defendant entitled to refuse the claimant's application on the basis that the proposed diversion would alter part of the right of FP 32 to run co-extensively with FP 29?

14. I deal first with the submissions in relation to issue (a). I begin with the submissions on behalf of the defendant since it is the defendant who is advancing a case in relation to Section 119 (2).
15. The submission of counsel on behalf of the defendant is that if one looks at the definition of "footpath" in Section 329 it must follow that whenever a footpath meets a highway of a different status the footpath must necessarily terminate. There is thus a point of termination for the purpose of sub-section (2). He submits that at the point where it appears to cross, for example, a bridleway or a road, there must be for a short distance a gap in the footpath since that short distance would not be within the definition of "footpath" in section 328. It follows that even if, on a map, a footpath appears simply to cross a right of way, for example, a bridleway or a road and even if a walker would regard himself or herself as walking a continuous footpath, in law there is a new footpath on the other side of the bridleway or the road. He points out that there is nothing in the Act that talks of the crossing of a bridleway or other kind of highway.
16. Counsel also points out that the numbering is not specified in the Act and that numbering is not given any special status in the Act. It is said to be simply a matter of administrative convenience. It is true that the numbering of footpaths is set out in the statement attached to a definitive map and referred to on the definitive map itself. But he points out that the practice is for the numbering to change at a parish boundary, and no one argues that a parish boundary would be a point of termination for this purpose.
17. He points to the fact that the footpath running from C to D on the plan, which is given the number 32, was only placed on the definitive map in 1973 so that the footpath number 32 did not originally include that section.
18. The submission undoubtedly has merit in that on these principles the issue of whether there was a point of termination involved in any of these applications would be clear from a brief examination of the definitive map. Any alternative approach would be open to argument and judgment.
19. If one looks at the layout of the footpaths in the present case, counsel for the defendants admits that there is some doubt whether at point G the proposed diversion from A-G would meet the unclassified road or whether it would remain off the road. Because of that doubt he submits that the points of termination of the existing footpath are A and C and the points of termination of the proposed diversion would be either A-G or A-H.
20. Counsel on behalf of the claimant submits that the length of the footpath to be considered, and hence the two points of termination, are always matters of fact to be determined in the particular case. The numbering of the footpath is merely one of the factors in deciding where the two points of termination can sensibly be said to be. He submits that the defendant's argument would mean that a footpath which, on the map, appeared to cross several public roads or bridleways would, as a matter of law, in fact be a series of short footpaths when it came to considering Section 119 (2). It would mean, he points out, that separate orders would be required for each of those sections though, no doubt, they could be considered together.
21. The argument that as it crosses a bridleway or road there will be a short distance which cannot come within the definition of a footpath is met, he submits, by the wording of Section 119 (1) which refers to "the line of the path or way or part of that line". That is a consideration which is not, in my view, conclusive but is of some weight in dealing with the submission made on behalf of the defendant.
22. Ultimately, he submits that the original footpath to be considered is the footpath from A to D and the proposed diverted route is the footpath A to D via the new route. That final submission does raise the difficulty that the section labelled Footpath 32 from C to D is not proposed for extinguishing.
23. I prefer the arguments put forward on behalf of the claimant. It seems to me that if one looks at section 119 as a whole it envisages in the case of a public path diversion order a single order rather than a series of orders for what is, in reality, a single diversion. In my view, the purpose of sub-section (2) is to ensure that a walker between two points of termination is not left wholly unable to reach his destination. I find the argument based on the wording of Section 119 persuasive. It is, in my view, for the council and, if necessary, the Secretary of State to consider what is the length of a footpath that is in issue and therefore what its two points of termination are for the purpose of sub-section (2). That question is a question of fact.
24. The numbering of the path or paths is not conclusive but is a relevant factor. Other factors will include the geography of the footpath generally and the destination which those using the footpath can be expected to be seeking to reach. There may of course be more than one destination which they are seeking to reach. In the present case it is open to the committee to decide whether the point of termination of the existing footpath should sensibly be regarded as point C and hence that the new point of termination is either G or H or whether, on the other hand, the point of termination can sensibly be said to be point D or indeed further on beyond point D.
25. I illustrate the kind of consideration that would be relevant by reference to the revised map of rights of way at page 130 in the bundle. If one looks at the footpath labelled 29 which, in the next parish, becomes Footpath 12, it seems to me that the footpath from our point H off towards the distant village of Askerswell could sensibly be regarded as a single footpath with its northerly point of termination as the point H. It would not, in my view, be sensible to regard its southern point of termination as point G since it would be perfectly natural to regard the path as extending beyond point G for some distance. On the other hand,if one end of a section of path that was to be the subject of an application for diversion was in the centre of a village - on the village green, for example - it might be very natural to say that that was the point of termination even if the number of the path continued on beyond that point.
26. As I have said, these are matters of fact to be considered in each case. If, on consideration of the facts, on the new application the committee accepts the submission of the defendant that point C is the northerly point of termination that is relevant for present purposes, then plainly Section 2 (2) (b) becomes relevant for consideration. If, on the other hand, the claimant's arguments are accepted and point D can be sensibly regarded as the point of termination for this purpose then Section 2 (2) (b) appears not to be relevant in the sense that point D although apparently at the end of a piece of unclassified road, does not involve any alteration in the point of termination. However if the claimant is correct it would still be necessary at the confirmation stage to consider the convenience of the public under sub-section (6), not only in the context of those wishing to walk from A to B but those wishing to get from A to C and intermediate points as well. Those issues are not before me today.
27. I therefore turn to issue (b). I can deal with it shortly since it is now, in effect, not the subject of dispute. I have been referred to Bernstein, which I cited earlier. That was a case decided by Mr Justice Hodgson and which called for a decision under Section 118 of the Act and related to the extinguishment of a highway. The submissions were however made that Section 119 could alternatively be considered. It is to be noted that Section 119 was then, in its wording, different from its wording today. Mr Justice Hodgson said at page 5:

"I, myself, have no difficulty in construing Section 119. It seems to me clear that what Section 119 is concerned with is moving the line of an existing path and, therefore, providing a new path in which event the old one can be stopped. The whole section seems to me to support the construction put upon it by the Circular of the Secretary of State. Of course, what the Secretary of State thinks the section means is not only not binding on him but not even something I should have regard to."

28. That was a reference to Circular 16/69 which has now been superseded. But at that time paragraph 11 of the Circular read:

"Although the new route provided by a diversion order may in part follow an existing path or road the order should not be used to close a path or way where the whole of the alternative route is already subject to a public right of way. The extinguishment of a path or way should be dealt with by an extinguishment order."

29. The words of Mr Justice Hodgson are ones I agree with but are of limited assistance in deciding the point which arises under issue (b).
30. Having said that, I note that there is now no dispute, although there was at one stage, that part at least of a diverted route may run along the line of an existing footpath. Counsel on behalf of the defendant concedes that sub-section (7) (b) expressly contemplates that situation.
31. It follows that the answer to the question in issue (a) is, in my view, in the negative although that answer should be considered in the light of the other comments I have made on that issue.
32. The answer to question (b) is "No", now by agreement.
33. I bear in mind that there is to be a new application. There is now no need for me to grant remedies sought in the original grounds which included the quashing of the decision. I asked counsel for the claimant whether in the light of that agreement it might be appropriate for me to grant a remedy by way of declaration. It seems to me that it is unnecessary for me to grant a declaration.
34. I have expressed my view so far as they are required in answer to the two issues raised. Those reasons can be taken into account on any new application. It seems to me that those views are not necessarily well designed to appear in a declaration. But I will hear counsel's submissions, if they wish, to the contrary.

MISS CARRINGTON: From my client's point of view, subject to what my Lord has to say, relief is not necessary in declaratory form as indicated. The only matters that remain are disposing of this application for judicial review. I would suggest that it be allowed without leave being granted.

MR JUSTICE CRANE: If I am making no order it is simple to say no order made, and I make no order on the application. I am troubled by the idea of allowing the application without making any order. It comes to the same thing.

MISS CARRINGTON: Of course. The application has, in effect, been allowed in the sense that it has answered the two points which it was agreed required addressing.

MR JUSTICE CRANE: If you are worried about costs, I do not think the question of whether I make no order or whether I make a declaration affects the question of costs because that is not the substantive matter. I am bound to say I think the answer is to make no order for reasons given unless you seek to dissuade me.

MISS CARRINGTON: My concern was two-fold. It is not just the question of costs, but also the fact that it is agreed between the parties that a fresh application will be made to committee. Obviously, what my Lord has said will be relevant to that. We would not like the district council to be under any misapprehension.

MR JUSTICE CRANE: You can obtain a transcript.

MISS CARRINGTON: Certainly, we would like a transcript.

MR JUSTICE CRANE: Because if I granted a declaration it would simply be a brief statement. It may be that other things I have said are of assistance in approaching the matter.

MISS CARRINGTON: Those are my submissions.

MR JUSTICE CRANE: No order?

MR CAIRNES: No order.

MR JUSTICE CRANE: I think that is right. I will make no order in the circumstances that I have outlined. Are there any other submissions?

MISS CARRINGTON: Can I ask for a transcript to be ordered in order that it might assist?

MR JUSTICE CRANE: You can ask in the usual way. If you are saying at public expense, I do not think I am saying that.

MISS CARRINGTON: No, not at public expense. My third application is for my client's costs at this hearing and before Mr Justice Mumby on the last occasion. A schedule has been prepared for exchange. I am not aware if the court has it.

MR JUSTICE CRANE: I have not seen it. (Handed)

MISS CARRINGTON: My submission is that, in the normal way, costs should follow the event. Mr Hotson posed two questions at the beginning of his submissions today. The answers your Lordship has given have been the answers he would have urged upon you. The Bernstein point was not conceded until today, so we have appeared. We have heard the ground for resisting the claim. In relation to the main claim - where a footpath terminates - that has always been in dispute despite the best efforts of the parties to resolve it. Subject to anything my Lord would say, I would ask you to make a summary assessment.

MR JUSTICE CRANE: What do you say about costs? Leave aside the amount.

MR CAIRNES: There are two things. The first thing is that, so far as the new application is concerned, the council did offer the applicant a fresh application as indicated at the outset of thishearing.

MR JUSTICE CRANE: When was that done?

MR CAIRNES: I can hand you the letter. It was done on 13th December 2001. At that stage the arguments as to mixed fact and law - points of termination - would be addressed before the committee. It would not be possible to pre-judge what view they would take as to the argument there raised. I say that against a backdrop of the full application. Your Lordship had read all the papers before you came in. The proper backdrop to this is that the applicant submitted before the committee that a certain test should be applied which was actually applicable to the wording of Section 119 (2).

MR JUSTICE CRANE: Yes. Can I read the letter? (Handed) (Pause)

MR CAIRNES: I believe that offer was repeated before this hearing. The first point I make therefore is set against the backdrop that the committee considered the very matters that it was argued on behalf of the applicant at the hearing that they should consider and was then upset with the result. I do not say that they do not come to court with clean hands in any disparaging sense, but they are partly the author of their own misfortune. I fully concede that the council themselves adopted and gave advice to the committee along those lines. But the representations were made quite clearly by two of the solicitors acting for the applicant that the test to be applied was the one that the committee did apply. Secondly, they were offered the fresh application. It might be - we are not to pre-judge it and it is not possible to pre-judge it - that the committee might adopt variously (?) had the matter gone straight back to committee, and we would not find ourselves here today. The appropriate order, I submit, as my first submission, is that there be no order as to costs. I certainly would not suggest that our costs should be paid.

MR JUSTICE CRANE: Permission was granted on 26th November.

MR CAIRNES: Yes.

MR JUSTICE CRANE; The offer followed that.

MR CAIRNES: The offer followed that, yes. The offer was reiterated within the last few days as well to preclude the necessity of us appearing today. It may have been the case that the committee would have accepted the arguments advanced today. But we are here.

That leads me on to the next point which is the question (b) point. Yes, the acknowledgement of service did refer to Bernstein, as properly drawn to the court's attention. At that time there was only a very short Times Law Report reference which you may have seen in the original acknowledgement of service amounting to a

couple of paragraphs. On being able to chase up and eventually getting hold of a copy of the transcript in the depths of the Bar library the skeleton argument made it quite clear, in my view, that it was no longer the case that it could never be utilised and that a public path diversion order is conceded and was conceded in the skeleton. Bernstein could be relevant depending on extent.

The question of the agreed statement of issues was in fact only passed to the court on Friday before I had opportunity to check it properly. I did not take great issue because it had been delivered to the court in any event. In my submission it should have been clear from the skeleton argument of the defendant, in particular paragraph 6.2. I referred your Lordship to it where it was clear we were never saying it was a matter that could not be material.

MR JUSTICE CRANE: Yes. But certainly when I first saw the statement of issues today - I am not complaining about that - when the matter came on it appeared there were two issues. You made it clear there was not any real dispute at the end about it.

MR CAIRNES: No.

MR JUSTICE CRANE: It rather looks as if the claimant was expecting to have to argue the point.

MR CAIRNES: In my submission, if one looked at the skeleton it was clear that the claimant should not have been expecting to argue it. The statement of issues or the agreed questions - I will be corrected if wrong - were e-mailed on Thursday to my chambers. I was not in on Friday for personal reasons. But I did speak to my learned friend on Thursday. I did not anticipate there would bea problem. I do not suggest there is a problem save and except it is not really a matter of issue when one looks at the skeletons. The agreed issues came late in the day and our skeleton seven days after that of the claimant. Presumably the agreed issues were drafted in the light of two skeletons.

MR JUSTICE CRANE: I am looking at your skeleton. It does look as if it is being said - the last two sentences of 4.3 - that was indicating that what was proposed here was contrary to Bernstein.

MR CAIRNES: If, in the context of the proposed diversion being from A to G and the application to be made on behalf of the claimant they say was in fact from point A through to D, it was then a material consideration which is what I say in the first sentence of the paragraph where I say it is the extent which must be material. Whether it is A-G or A-H is a matter the committee will have to determine following the observations of your Lordship in your judgment. To that extent, yes. But the bald phrase that it could never be transferred or part of it could never be transferred is not what I said in the skeleton. I say quite clearly "the extent to which" must be material. It is quite clear. Those are my submissions.

So far as the costs of today are concerned, if you are against me, bearing in mind the offer was made to argue this in front of the committee, in view of the late concentration of issues, it would be appropriate only to award costs for today's hearing and costs ancillary to that. In considering the question of costs you should also have the schedule that was prepared by the defendant.

MR JUSTICE CRANE: Do you want to show me that? (Handed) Miss Carrington, I have listened to what Mr Cairnes has said. It seems to me that there is something in the argument that by the way submissions were made before the committee the claimant to some extent is responsible for the way in which the committee approached the matter. My inclination would be to say although as it turns out the application was justified in the sense that the submission is made that there should be a further hearing of the two matters today resolved in your favour it does seem to me that in view of the conciliatory attitude of the defendant that you should have three quarters of your costs.

MISS CARRINGTON: I am not arguing the toss as to percentages. I have two points to make in relation to argument put before the committee and what happened subsequently. The first is this: whatever measure of criticism may be directed at those appearing in front of the committee, it has almost nothing to do with the issue my Lord was asked to resolve today. It was only when the acknowledgement of service was filed that it transpired that - which was unknown to the claimant - the committee was treating this as a Section 119 (2) case. My friend's argument might have been stronger had we not been dealing purely with the application of Section 119 (2). That is what we are dealing with.

Secondly, as to the offer of a fresh application to committee, those instructing me and all those practising in this court are very conscious of the need to avoid hearings wherever possible since the decision in Cowl by alternative means. The application put forward in the best of faith, as I am sure it was, was no more than a statement of the claimant's existing rights at that time. He could have always simply submitted a fresh application to committee which they would then have been required to consider under Section 119 before proceeding or not. The problem that was likely to be encountered and has been encountered has been the approach as a matter of law and as a matter of fact in law as to the question of Section 119 (2) and, as Mr Hotson explained, it was pointless to accede to an invitation to go back to committee when we would end up, by a more circuitous route, in front of my Lord in a year's time. Conciliatory though the attitude was, it was conciliatory on purpose.

MR JUSTICE CRANE: I think to some purpose, but you may be right in saying, particularly with issue (a), it might have come back again. I suppose it might still come back.

MISS CARRINGTON: That is the issue, the stumbling block. Had it been a question of more minor matters and procedural matters and so on the parties would have taken a different approach. From the claimant's point of there was no point in going back to committee to get or to run the risk of getting the same answer and then having to renew.

MR JUSTICE CRANE: It still remains true that if the matter had been put forward, including consideration of the subsection (2) ground, the matter would either have been resolved in the claimant's favour or at least a clear issue would have been created to bring to this court. I appreciate that they had legal advice as well. The reason this has happened at this stage does seem to me to have something to do with the way it went.

MR CARRINGTON: My Lord has heard my submissions. The only thing I would say in response to that is to draw your attention to paragraph 2 of the application for judicial review which makes it clear that at the point where the application for permission was commenced, at page 8 at the bottom:

"In this case neither of the points of termination between the parties propose to be altered."

Those are my submissions.

MR JUSTICE CRANE: Three-quarters of your costs.

MR CAIRNES: I referred to "without prejudice" correspondence. I think you should read it.

MR JUSTICE CRANE: You have had your chance to argue the matter, but I will look at them if you want.

MR CAIRNES: I refer to it as being repeated.

MR JUSTICE CRANE: I bear that in mind.

MR CAIRNES: It is the letter from the claimant.

MR JUSTICE CRANE: Do you want to say anything else in the light of that?

MR CAIRNES: I knew it had been referred to and repeated again, but it was in the context of a Part 36 requiring the council or asking the council to remove a step in the process. The reply from the district council was we would accede to the relief they were seeking. That is all I can say.

MR JUSTICE CRANE: You said?

MR CAIRNES: The proposal from the Messrs Thring Townsend was they would not contemplate anything that did not allow the matter to be put straight to the Secretary of State.

MR JUSTICE CRANE: I follow that point. Are you telling me that the council were conceding that the applicant should have the remedy they wanted?

MR CAIRNES: A fresh application where they could argue the matters again.

MR JUSTICE CRANE: I know. Not the remedy they were asking.

MR CAIRNES: No. But in the context of the applicant asking the council to do something which they were not empowered to do. There is no machinery for the council to hop over that process.

MR JUSTICE CRANE: I see what you mean. I am afraid I still think three-quarters of the costs. In view of the two statements of costs, it seems to me that I could only do justice as between those at some considerable inquiry so I am going to refer it for detailed assessment. I am sure that will sort it out relatively expertly and shortly.