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Cite as: [2005] EWHC 2363 (Admin)

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		Neutral Citation Number: [2005] EWHC 2363 (Admin)
		CO/17/2005

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2

14th October 2005

B e f o r e :

MR JUSTICE SULLIVAN
____________________

	THE QUEEN ON THE APPLICATION OF HERTFORDSHIRE COUNTY COUNCIL	(CLAIMANT)
	-v-
	DEPARTMENT OF ENVIRONMENT FOOD & RURAL AFFAIRS	(DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR D BROMILOW (instructed by HERTS CC LEGAL DEPARTMENT) appeared on behalf of the CLAIMANT
MR T MORSHEAD (instructed by DEFRA) appeared on behalf of the DEFENDANT
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE SULLIVAN:

Introduction

This is an application for judicial review of a decision by an Inspector appointed by the defendant not to confirm three public path extinguishment orders made by the claimant under section 118 of the Highways Act 1980 ("the Act"). The Inspector's decision is contained in a decision letter dated 6th October 2004.

Factual Background

The orders related to a number of paths in the Tyttenhanger area near St Albans. The area has a history of mineral workings since the 1940s. It is criss-crossed by a complicated network of rights of way, parts of which had been rendered obsolete or impassable by mineral workings, by the diversion of the River Colne, by the construction of the London Colney Bypass, and by other developments.

The claimant had been in discussions with interested parties for many years, with a view to rationalising the network. In 1995 it reached agreement with the landowners for a package of alterations to the network that would be implemented in phases. The package proposed the extinguishment of some paths, the diversion of others and the creation of new paths, the intention being to achieve an overall improvement in the network as a whole.

On 23rd April 2001 the claimant entered into an agreement under section 25 of the Act with the relevant landowners and tenants ("the agreement"). The agreement provided for the creation of new paths in two groups, the schedule 2 paths and the schedule 3 paths. Both groups of paths were to be dedicated for public use. In the case of former such dedications were "to become effective immediately before the extinguishment by means of an extinguishment order or orders of the related length or lengths of paths set out in column B of schedule 2 and shown on the plan annexed here to." (Clause 2.1).

Schedule 2 to the agreement was headed "diversions" and contained three columns. Column A identified the path in question. Column B identified lengths of that path that were to be extinguished, for example, between points C-E on the plan. Column C identified lengths of path to be newly created, for example, path C-D-E to replace existing path C-E. For the last three paths listed in the schedule 2 there was no column C, that is to say no new path was to be created to replace them.

Schedule 3 was headed "creations" and listed a number of footpaths and bridleways. The lines of three paths, one in schedule 2, (R-T-Z-X) and two in schedule 3, were to be agreed between the parties and the new paths were to be provided forthwith after such agreement.

By a supplemental agreement dated 2nd June 2003 the line of path R-T-X was agreed. Thus by the time the enquiry opened before the Inspector on 17th August 2004 the lines of all the schedule 2 paths had been agreed, leaving only the routes of two of the paths in schedule 3 to be agreed.

The claimant made four extinguishment orders referred to at the enquiry as orders A-D. Order A was dated 2nd November 2001 and extinguished a substantial number of the paths listed in column B of schedule 2 to the agreement. All of these paths were to be "superseded" by newly created paths listed in column C of schedule 2.

Order B, also dated 2nd November 2001, extinguished one path listed in column B which was to be superseded by a newly created path listed in column C. Order C was dated 20th July 2001, and extinguished the last three paths listed in schedule 2, which were not to be superseded or replaced by newly created paths. Order D, also dated 20th July 2001, extinguished the path in column B of schedule 2 that was to be replaced by footpath R-T-Z-X, the line of which had been fixed in the 2003 supplementary agreement.

Inspector's Decision

The Inspector confirmed order C because in summary she concluded that, ignoring the temporary instructions which could be removed to restore public access, the paths were not likely to be used by the public to any significant extent. There is no challenge to her decision in respect of order C.

In the case of orders A, B and D, where it was proposed the paths to be extinguished would be superseded or replaced by newly created paths listed in column C of schedule 2 to the agreement, the Inspector concluded that she could not take these alternative routes into consideration. In paragraph 29 of the decision letter, she said:

"I am not a lawyer but simply as a matter of logic I find it difficult to fully accept the concept that a series of new public rights of way will retrospectively arise immediately before confirmation of the Orders (since that is the moment the extinguishments would become effective) when the extinguishments may need to depend on their (pre-)existence for that confirmation. If this 'package' were before me as concurrent orders under sections 26 and 118 of the 1980 Act (for creation and closure) both could be confirmed at the same time and (subject to any period being required for works) both could come into effect at the same time and the matter would be quite certain. The question is whether there is the same degree of certainty and reliability within a creation agreement that [is] clearly not before me for determination and which rests on the respective parties to ensure its full implementation."

Having discussed the issue further, she said, in paragraphs 35 and 36:

"35. In conclusion, it seems to me that the legislation does not envisage paths proposed for creation by agreement being taken into account when determining extinguishment orders in the way as creation orders. If it had been intended, it would have clearly have said so.

36. That aside, I have considered very thoroughly whether or not I can take into account the new routes proposed by the two agreements as material circumstances that... should not be ignored. If I were to decide to confirm one, some or all the four orders, immediately afterwards I would discover that the corresponding creation had come into existence. Yet at this point in time none of these alternatives exist as public rights of way. Had these routes been proposed by creation order, the situation would have been different. In view of the various differences between creation orders and agreements which leave the latter generally less reliable when used in this context, with limited public input, and particularly the 'chicken and egg' timing of the proposed creations in relation to the extinguishments, I conclude that the Orders before me must stand or fall on their own merits, without account being taken of the creation agreements."

In paragraph 39 the Inspector said:

"If, as I have concluded, the corresponding alternative routes proposed in the creation agreement cannot be taken into consideration, extinguishment of these three Order routes would leave a wholly disjointed network of public rights of way. However, I am not required to address the question of need for the Orders routes, either collectively or individually. The question for me is their likely use if the order is not confirmed."

She answered that question in paragraph 40 by saying:

"...without any alternative public rights of way in existence, it is difficult to see why the Order routes would not be used, assuming access along them is restored."

The parties are agreed that the Inspector was entitled, indeed bound, to reach that view, if she was correct in her conclusion that she was not entitled to take into consideration the new paths proposed in the agreement. The parties are also agreed that if her conclusion was not correct and she was, as a matter of law, entitled to have regard to the new paths proposed in the agreement, her decision would have to be quashed, so that she could then consider the detailed merits of the provision made under the agreement.

Before considering the claimant's grounds for contending that the Inspector erred in concluding she was not entitled to take into consideration the new paths listed in column C of Schedule 2 of the agreement, it is convenient to set out the relevant statutory provisions.

Statutory Framework

Part III of the Act deals with the creation of highways and includes sections 25 and 26, which provide as follows:

"25(1) A local authority may enter into an agreement with any person having the necessary power in their behalf for the dedication by that person of a footpath or bridleway over land in their area.

An agreement under this section is referred to in this Act as a 'public path creation agreement'...

(3) Before entering into an agreement under this section a local authority shall consult any authority or authorities in whose area the land concerned is situated.

(4) An agreement under this section shall be on such terms as to payment or otherwise as may be specified in the agreement and may, if it is so agreed, provide for the dedication of the footpath or bridleway subject to limitations or conditions affecting the public right of way over it.

(5) Where a public path creation agreement has been made it shall be the duty of the local authority who are a party to it to take all necessary steps for securing that the footpath or bridleway is dedicated in accordance with it.

(6) As soon as may be after the dedication of a footpath or bridleway in accordance with a public path creation agreement, the local authority who are party to the agreement shall give notice of the dedication by publication in at least one local newspaper circulating in the area in which the land to which the agreement relates is situated."

Section 26:

"(1) Where it appears to a local authority that there is need for a footpath or bridleway over land and their area and they are satisfied that, having regard to-

(a) the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area, and

(b) the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensation contained in section 28 below,

it is expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed by them as an unopposed order, create a footpath or bridleway over the land.

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

...

(3) A local authority shall, before exercising any power under this section, consult any other local authority or authorities in whose area the land concerned is situated.

...

(4) A right of way created by a public path creation order may be either unconditional or subject to such limitations or conditions as may be specified in the order.

(5) A public path creation order shall be in such form as may be prescribed by regulations made by the Secretary of State, and shall contain a map, on such scale as may be so prescribed, defining the land over which a footpath or bridleway is thereby created.

(6) Schedule 6 to this Act shall have effect as to the making, confirmation, validity and date of operation of public path creation orders."

Section 27 deals with the making up of new footpaths and bridleways on their dedication pursuant of a public creation agreement, or on the coming into effect of a public path creation order. Section 28 makes provision for compensation for loss caused by a public path creation order and section 29 requires councils to have due regard to agricultural, forestry and conservation considerations when making either public path creation agreements or public path creation orders.

Part VII of the Act deals with the stopping up and diversion of highways. Section 116 gives magistrates the power to authorise the stopping up or diversion of highways:

"(1) Subject to the provisions of this section, if it appears to a magistrates' court, after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the highway authority have made an application under this section-

(a) is unnecessary, or

(b) can be diverted so as to make it nearer or more commodious to the public,

The court may by order authorise it to be stopped up or, the case may be, to be so diverted."

Section 118 is of central importance in the present case and provides as follows:

"(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.

(3) A public path extinguishment order shall be in such form as may be prescribed by regulations made by the Secretary of State and shall contain a map, on such scale as may so prescribed, defining the land over which the public right of way is thereby extinguished

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

(5) Where, in accordance with regulations made under paragraph 3 of the said Schedule 6, proceedings preliminary to the confirmation of the public path extinguishment order are taken concurrently with proceedings preliminary to the confirmation of a public path creation order, public path diversion order or rail crossing diversion order then, in considering-

(a) under subsection (1) above whether the path or way to which the public path extinguishment order relates is needed for public use, or

(b) under subsection (2) above to what extent (if any) that path or way would apart from the order be likely to be used by the public,

the council or the Secretary of State, as the case may be, may have regard to the extent to which the public path creation order, public path diversion order or rail crossing diversion order would provide an alternative path or way.

(6) For the purposes of subsections (1) and (2) above, any temporary circumstances preventing or diminishing the use of a path or way by the public shall be disregarded."

Section 119 deals with the diversion of footpaths and bridleways:

"(1) Where it appears to a council as respects of a footpath or bridleway 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 on to 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 specified in the order or determined 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 count 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.

(3) Where it appears to the council that work requires to be done to bring the new site of the footpath or bridleway into a fit condition for use by the public, the council shall-

(a) specify a date under subsection (1)(a) above, and (b) provide that so much of the order as extinguishes (in accordance with subsection (1)(b) above) a public right of way is not to come into force until the local highway authority for the new path or way certify that the work has been carried out.

(4) A right of way created by a public path diversion order may be either unconditional or (whether or not the right of way extinguished by the order was subject to limitations or conditions of any description) subject to such limitations or conditions as may be specified in the order.

(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(i) to enter into an agreement with them to defray, or to make such contributions 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 for 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 affected by it is expedient as mentioned in subsection (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 affect 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 other 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."

Subsection (9) applies section 27 to footpaths and bridleways created by orders made under section 119.

It is unnecessary to set out the provision of schedule 6 in any detail, it suffices for present purposes to mention that the schedule requires public notice to be given of the submission of an order made by a council under section 26, section 118 or section 119 to the Secretary of State for confirmation. If there are objections, the Secretary of State may, and in certain circumstances must, arrange for public local enquiry or hearing and consider the Inspector's report before reaching any decision. Whether an order is opposed or unopposed the Secretary of State has power to confirm it with or without modifications. Paragraph 3 in schedule 6 gives the Secretary of State power to make procedural regulations and by virtue of paragraph 3(2):

"Provision may be made by regulation of the Secretary of State for enabling proceedings preliminary to the confirmation of a public extinguishment order.....to be taken concurrently with proceedings preliminary to the confirmation of a public path creation order ['a public path diversion order [or] a rail crossing diversion order....."

Submissions and Conclusions

On behalf of the claimant Mr Chapman submitted that there were two issues of law that arose for determination in the present case. Firstly, whether the defendant could lawfully take account of a public path creation agreement, made under section 25 of the Act, when deciding whether to confirm an extinguishment order made under section 118. Secondly, whether the defendant could lawfully confirm an order under section 118 in circumstances where the path or paths could have been extinguished and replaced by new paths under a section 119 diversion order. He submitted the answer to both of those questions was "yes".

Although issue two was not considered by the Inspector it was raised in Mr Morshead's skeleton argument on behalf of the defendant.

I am not persuaded that there are two separate issues Rather, there is one question: what is the proper interpretation of section 118? In answering that question, the words of section 118 must not be considered in isolation but within the context of the statutory framework including, in particular, the provisions of section 119.

In my judgment, part VIII of the Act draws a clear distinction between those cases where a footpath or bridleway (for convenience, I will henceforth refer simply to paths) for example, between points A and D, is not needed, and therefore there is no need for a path between those points to be maintained on a different route, and those cases where there is a need for a path between points A and D, but it is expedient that it should be re-routed so as to run from A-C-D rather than A-B-D. Section 118 gives the claimant power to deal with the former situation; section 119, with the latter. In the latter case, because there is a need for a path between points A and D, section 119 ensures that the new route will still provide such a path (with a limited degree of flexibility if those points are located on a highway; see subsection (2)), and that the new route A-C-D will not be substantially less convenient to the public than the old route A-B-D: see subsection (6).

The claimant's difficulties in the present case have stemmed from the fact that it has sought confirmation of orders under section 118 for the stopping up of ways that are needed, but which it is expedient (in the claimant's view) to re-route. It is clear from schedule 2 to the agreement that all of the ways listed in column B, with the exception of the last three paths which are the subject of order C, are still needed. That is why they are to be replaced by the new paths in column C. Section 118(1) gives the claimant power to deal with a path that "is not needed", not with a path that is needed but will not be needed if and when an alternative route between the two termination points is provided.

Mr Chapman submits that this is an over-literal approach to the power conferred by subsection (1), and in ordinary language it is common usage to employ the present tense to refer to an event which may continue from the present for some time into the future. As a matter of ordinary language the claimant is entitled to conclude that a path "is not needed for public use" if it is to be replaced by a new path under a creation agreement. The word "is" covers not merely the time when the claimant makes the order but also the period up to and including the confirmation of the order at which time the new path in column C in schedule 2 to the agreement would be dedicated to public use.

Notwithstanding the terms of clause 2.1 of the agreement (see above) Mr Chapman accepted that dedication under the agreement could not take place before some uncertain future event. He submitted that clause 2.1 should be construed as providing that dedication of the paths in column C of schedule 2 would take place immediately upon the confirmation of the extinguishment order(s) in relation to the relevant lengths of path in column B of the schedule.

I accept that in certain contexts the present tense may be used to describe circumstances which continue from the present into the future. However, there is no reason to conclude that Parliament intended the present tense in subsection section 118(1) should be understood in that way, given that it made express provision in subsection 119(1) for those cases where there is a need for a path between two points, but it could sensibly diverted along a different route between them.

Mr Chapman pointed out that the challenge in these proceedings was to the defendant's decision under subsection 118(2) not to confirm the order, not to the claimant's decision to make the order and submit it for confirmation under subsection 118(1). I accept that the test in subsection (1) - whether the path "is not needed" - differs from that in subsection (2)- to what extent would the path, apart from the order, "be likely to be used": see R v The Secretary of State for Environment ex parte Cheshire County Council (1991) GPL 537 at page 538 per Auld J (as he then was), adopting the approach of Phillips J (as he then was) in R v The Secretary of State and Environment ex parte Stewart (1980) JPL 175. While there will be some cases where this distinction could be a matter of importance (see per Phillips J at page 175 of Stewart), in very many cases it will be a distinction without a difference. If the evidence persuades an Inspector that, apart from the order, a path is likely to be well used, that may well be a strong indication that the path is in fact needed, contrary to the council's view. Conversely, if the Inspector concludes that there is likely to be no, or no significant, use of the path, one might reasonably assume, all other things being equal, that that was because it is not needed.

While there is no necessary correlation between the need for a path on the one hand and the extent to which it is likely to be used on the other, common sense suggests there is likely to be a strong degree of linkage between the two tests in very many cases. In the present case the distinction is of no consequence in any event since the Inspector expressly considered the extent to which the paths in orders A, B and D would, apart from the orders, be likely to be used.

Mr Morshead submitted that the words "apart from the order" in subsection (2) reinforced the defendant's submission that section 118 was concerned with matters as they currently stand, both at the date of the making of the order by the claimant and then at the date of the confirmation of the order by the defendant.

At the latter stage the defendant has to consider the extent to which the path would be used ignoring the existence of, or leaving out of account, the stopping up order. In the present case, "apart from" orders A, B and D, the paths in column B of schedule 2 to the agreement will continue to be used because the diversions listed in column C will not be dedicated for public use. Mr Chapman submitted that the words "apart from the order" did not require the defendant to ignore the existence of the order or to assume that it had not been made. In the context of section 118, he submitted that apart from the order meant "on the assumption that the public right of way is not extinguished by the order."

In many cases it would make no practical difference whether the defendant considered the extent of likely usage of a path on the assumption that there was no extinguishment order or on the assumption that the way was not extinguished by an extinguishment order. Parliament could have required the defendant to consider the extent which a "path or way would, if it was not extinguished by the order, be likely to be used by the public". But it chose the more straightforward course of requiring the defendant to consider what usage would be likely "apart from the order," ie, simply leaving the order out of account altogether. If that is done, it is common ground that the paths listed in column B of schedule 2 to the agreement are likely to be used, because the paths in column C will not have been dedicated.

For the purposes of analysis it is necessary to consider section 118 subsection by subsection but the section must be construed as a whole. Subsection (5) is a powerful indication that the use of the present tense in subsection (1) was deliberate. Subsection (5) would have been unnecessary if, when considering whether a path or way "is not needed", a council could look to the future and have regard to the extent to which an alternative path would be provided by a public path creation order, or public path diversion order, if such an order was to be confirmed.

Mr Chapman accepted this proposition but submitted that there was a distinction between an unconfirmed public path creation or diversion order and a public path creation agreement under section 25. The former had no legal effect whatsoever unless and until it was confirmed and could not therefore logically be taken into consideration when considering the tests in subsections (1) and/or (2) of section 118. By contrast the latter had immediate legal effect once entered into, even if dedication was expressed to be conditional on some future event such as the stopping up of an existing path. Since section 25 agreements had immediate legal effect, they could be taken into consideration when applying the tests in subsections (1) and (2) of section 118, and the extent to which the legal obligations imposed by the agreement were conditionally merely went to the weight that was to be given to those obligations by the decision takers.

Mr Morshead submitted that if Parliament had intended that the decision makers under section 118(1) or (2) should be able to have regard to section 25 agreements as well as to orders made under sections 26 or 119, it would have said so. If it was possible to consider what would be the effect of a section 25 agreement to dedicate an alternative way conditional upon some future event, then there would be no reason in principle why the decision taker should not also be able to consider what would be the effect of confirming an order which would provide an alternative path. In both cases the decision taker would be having regard to the probable future existence of a new path.

For present purposes I am prepared to accept Mr Chapman's submission that clause 2.1 of the agreement should be construed as though it provided that dedication of the schedule 2 paths would become effective immediately upon the extinguishment of the related lengths of path in column B of the schedule.

Section 25 expressly envisages that councils and landowners may agree that dedication is to take place at some future date: see subsections (2) and (6) of section 25. If it was permissible to take into consideration an alternative path that is proposed to be dedicated upon the happening of some future event when considering whether an existing path "is not needed", it would be necessary for the decision taker to form a view as to whether, if so when, the event was likely to occur, whether it was likely the agreement would be complied with, and whether in the event of failure to comply, the court would be likely to grant discretionary relief in order to secure compliance. Mr Chapman would argue that these would all be matters of weight for the decision taker to assess.

But if decision takers can look to the future when applying the tests in subsections (1) and (2) of section 118, why should they not consider the future prospects of an order under section 26 or section 119 that has been made but not confirmed? In such a case the defendant's task under subsection (2) would be far more straightforward since he would know, before reaching any decision under subsection (2) as to likely use, whether or not he proposed to confirm the order under section 26 or 119, creating the alternative route.

Subsection (5) is not to be treated as though it was otiose. It was enacted because, absent such provision, an alternative path proposed in a creation or diversion order submitted for confirmation could not be considered by decision takers under subsections (1) and (2).

Looking at section 118 as a whole, subsections (1) and (2) are concerned with the position as it exists on the ground when the order is made and when it is confirmed. Subject to the provisions of subsection (5) the decision taker under section 118 is not entitled to have regard to possible or probable future diversions of, or additions to, the rights of way network. Subsection (5) creates a limited class of exceptions to this general rule. For it to apply it is not sufficient merely that orders have been made under section 26, or 119 proposing alternative paths. The orders must have been submitted for confirmation and there must be concurrent confirmation proceedings so that the defendant will be in a position to consider the merits of all the orders, and is able to ensure that all of them come into effect, with or without modifications, contemporaneously.

Mr Chapman submits that there are no policy reasons for treating creation agreements under section 25 differently from creation orders made under section 26. The claimant seeks to create new paths by agreement rather than pursuant to orders, if at all possible. He submits that it would be contrary to public policy to require the claimant to make an order under section 26 simply so it could be taken into consideration under section 118(5), if the new path in question could equally well be created by agreement under section 25.

If the issue is considered simply from the perspective of the local authority and those with an interest in the relevant land, an agreement may well be preferable to an order under section 26, although it should be noted that a landowner may agree not to claim compensation, or to accept a particular sum as compensation, under section 28 if an order is made under section 26. Conversely a council may agree to pay compensation if an agreement is entered into under section 25 (see subsection (4)).

As between the local authority and those interested in the land, there need be no, or no significant difference between proceeding by way of section 25 or section 26. Subject to subsection 118(5), anything that can be achieved by way of a creation order can be achieved by way of a creation agreement, and vice versa.

However, from the point of view of those who are entitled to use the rights of way network, the public, there are significant differences between the two procedures. A council may choose to carry out a non-statutory consultation exercise before entering into an agreement under section 25, but it is not obliged to do so. This contrasts with the provisions of schedule 6 to the Act, which ensure the public are given notice of a making of a creation order under section 26. Those who object to the order, or who seek modifications to it, then have an opportunity to put their arguments to an independent Inspector who has the power to refuse to confirm the order or confirm it either without modifications or with modifications which may meet their objections either in whole or in part. The same procedural safeguards apply to diversion orders made under section 119.

Thus, the concurrent proceedings referred to in subsection 118(5) will be in respect of order making processes in which the public has a statutory right to participate, and where the Secretary of State has power to respond (for example, by making appropriate modifications) to such participation.

There are no such safeguards in section 25. As Mr Morshead put it, whilst the public could object to the claimant's stopping up order under section 118, they were presented with the alternative routes in the agreement on a take-it-or-leave-it basis. If, as in the present case, a public path creation agreement under section 25 is used in conjunction with section 118 stopping up order to effect what is in reality a diversion of a path, the public is not merely deprived of these procedural safeguards and presented with the proposed diversion element of the package on a take-it-or-leave it basis, it is also deprived of the safeguards in subsections (1), (2), (3) and (6) of section 119: that the diversion must be expedient in the interests of those interested in the land or the public; that the points of termination must remain the same (subject to the flexibility afforded by paragraph (b) in subsection (2)); that the old path is not extinguished until the replacement is in a fit condition for the public to use it; that the diverted way will not be substantially less convenient to the public; and that the diversion must be expedient having regard to the effect of the diversion on the public enjoyment of the path as a whole.

There are therefore powerful policy reasons for requiring section 119 to be used where what is proposed is not in reality the creation of a wholly new path, but the re-routeing of an existing path.

I realise that subsection 118(5) enables the decision maker to have regard to alternative paths that would be provided either by public path creation orders made under section 26, or by public path diversion orders made under section 119. However, its clear from subsection (1) of section 26 that Parliament did not intend that section 26 should be used where all that was proposed was the diversion of an existing path. Before an order can be made under section 26 the local authority must be satisfied that there is a need for the proposed path and that it is expedient that it should be created having regard to the extent to which it would add (my emphasis) to the convenience or enjoyment of a substantial section of the public. This may be contrasted with the lesser requirement in section 119(6) that a diverted path must not be "substantially less convenient" than the path which it replaces.

Section 26 is concerned with the creation of new ways which add to the network, not with the diversion of existing ways. I do not therefore accept that it would have been appropriate for the claimant to proceed by way of a creation order under section 26, in respect of the majority of the "diversions" that are listed to schedule 2 to the agreement.

I do accept that some of the new paths listed as "diversions" in column C of schedule 2 to the agreement are not direct replacements for the corresponding paths listed in column B; for example, the new footpath L-F, which does not start on a highway. However, most of the paths listed under the heading of "diversions" are just that, diversions of existing footpaths which could, and upon a proper interpretation of section 118 should, have been effected by the making of an order or orders under section 119.

Those paths in column C of schedule 2 which are new additions to the footpath network rather than diversions, and the "creations" listed in schedule 3, could all have been created by an order or orders made under section 26. Thus, the Act does not frustrate the claimant's objectives, it makes express provision for them.

For the purposes of this judgment, it is unnecessary to consider the further powers contained in section 247 of the Town and Country Planning Act 1990 to divert or stop up highways to enable developments (including mineral extraction) to be carried out.

Mr Chapman invited the court to stand back and take an overview of the issues in the case. He submitted that the scheme produced by the claimant through the combined mechanism of sections 25 and 118 produced a wholly sensible rationalisation of the rights of way network at Tyttenhangar and that it would be most unfortunate if the claimant had to start all over again with the inevitable additional costs and delay. He submitted that a meritorious rationalisation scheme should not be frustrated on "purely technical" procedural grounds.

It is not for me to express any view, much less to reach any conclusion as to merits of the claimant's rationalisation proposals. That would be a matter for the Inspector if orders under sections 26, 118 and 119 were submitted for confirmation and the concurrent procedure adopted.

The Act contains a very detailed code for the extinguishment and diversion of existing paths and the creation of new paths. The procedures in the Act cannot be ignored on the basis that they are "unmeritorious technicalities". They are there for a purpose, to ensure that the public interest in our extensive network of public rights of way rightly described in Circular 2/93, Public Rights of Way, "as a unique legacy", are fully protected. To a significant extent the mechanism adopted by the claimant side-stepped the procedural provisions intended to protect this public interest.

Looking at the statutory scheme as a whole, there are therefore powerful policy reasons, quite apart from the need to give the words of section 118 their ordinary and natural meaning (paras 26-39 above), why the section should not be interpreted so as to facilitate the claimant's scheme, whatever its merits may be.

For the sake of completeness I should mention that I have considered the provisions of section 116 above. Section 116 is the successor to provisions contained in sections 84 to 92 of the Highways Act 1835. In R v Midgley Local Board (1864) 5 B & S 621 Blackburn J observed that the earlier statutory language:

"All... points to the present tense, and not to what the justices might reasonably expect to take place afterwards."

Midgley is cited by the textbook writers as authority for the proposition in deciding whether a road "is unnecessary". The justices must have regard to "the circumstances now prevailing. A road may not be stopped up now because another road yet to made available will be nearer or more commodious": see the Encyclopedia of Highway Law, paragraph 2 - 196, also Sauvain's Highway Law paragraph 9 - 26, at page 263.