England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		8 November 2012

1. MR JUSTICE OUSELEY: The Ramblers' Association challenge, under paragraph 2 of Schedule 2 to the Highways Act 1980, the decision of an Inspector appointed by the Secretary of State for the Environment, Food and Rural Affairs given on 16 November 2011, whereby he confirmed an order known as the Oxfordshire County Council Bodicote Footpath No 8 (Part) and Bloxham Footpath No 2 (Part) Public Path Diversion Order 2008. This order diverted part of the footpaths referred to in the order onto a different alignment over part of their route.
2. The application for the order had been made in 1994 by the previous owners of Bodicote Mill and it had been pursued by the current owners, who are the third and fourth defendants to this challenge. The order had been made by the Oxfordshire County Council, but it required the Secretary of State's confirmation.
3. The Inspector reached his decision following an inquiry at which a number of individual objectors and, in particular, the Bodicote Parish Council (though at one point a supporter) had expressed their opposition to the order. The Inspector said in his conclusions, in relation to the order being confirmed, this:

"Confirmation of the Order would lead to a significant decrease in public enjoyment of the path between Bodicote and Bloxham, although not greatly so (paragraph 59). It would lead to a very significant increase in the privacy and a significant increase to the security of the applicants. It seems to me that I should take into account that the effect on public enjoyment might be lasting whereas the applicants will benefit only for as long as they occupy the Mill although, as I noted above, future owners would probably benefit too. I should also take into account, I consider, that the enjoyment of a greater number of people would be affected while only those resident at the Mill would immediately benefit from confirmation of the Order. On the other hand people's enjoyment of the path would be affected principally only when they were walking the diverted path, while the benefit to the applicants would be felt continually. It is a difficult balance to make, but overall I conclude that the interests of the applicants prevail, and that it is expedient to confirm the Order."

4. In paragraph 70, under the heading "Other matters", the Inspector said:

"I mention here two arguments which were each raised in a number of objections. The first is that because the applicants knew of the existence of the footpath when they bought the Mill it is not legitimate for them to expect that it should be diverted. The second argument is that if this diversion is allowed it might set a precedent for the diversion of other paths which pass close to nearby mills. Understandable though these arguments might be, they are not relevant to the tests for confirmation set out in s119 of the 1980 Act."

5. It is conceded by the Secretary of State and by the two individual defendants and asserted by the claimant that the Inspector erred in law in treating those two matters as irrelevant. The Secretary of State was indifferent initially as to whether the decision should be quashed, but accepted in the end that he could not say that without those errors the Inspector's decision would inevitably have been the same. The Westons contend that the decision would plainly and inevitably have been the same.
6. The test which the claimants said needed to be satisfied but had not been, and which the Westons say had been satisfied, is the well-known test derived from Simplex GE (Holdings) Limited v Secretary of State for the Environment [1989] 57 P&CR 306. In that test, the Court of Appeal pointed out that where it was found or conceded that a decision was unlawful, as is the case here, the discretionary power in the court not to quash it because of an error by an Inspector should only be exercised if the court was satisfied that its decision could not have been different had he not made the error. It is a high hurdle for someone to overcome, but not impossible.
7. However, as the case proceeded, the claimants sought to raise by recent amendment a wider argument about the way in which the Secretary of State should approach his task under section 119 of the Highways Act, with the implications which that had for the way in which a local authority should approach its task under section 119(1).
8. The Secretary of State and the defendants disagree with the approach contended for by the claimants, which contend, through Mr Laurence QC, that an understanding of the statutory structure would affect the way in which at various stages an Inspector had to consider the various factors. Those factors included not just the ones erroneously omitted for consideration in paragraph 70, but also the loss of the historical integrity of the footpath through its diversion. No concession has been made by the Secretary of State in relation to that aspect.
9. The Oxfordshire County Council, though the affected Highway Authority, has not appeared or made representations in relation to the wider issue, though they are capable of affecting its task.
10. I turn to section 119 of the Highways Act 1980. Sub-section (1) provides:

"Where it appears to a council as respects a footpath, bridleway or restricted byway 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, bridleway or restricted byway as appears to the council requisite for effecting the diversion..."

11. It is contended by Mr Laurence that those words contained two components: the first is an expediency issue; and second, by virtue of the words "the council may", a discretion in the light of the answer given to the expediency question. That structure is not as such in issue, but the way in which the two factors inter-mesh is at issue.
12. By sub-section (6), it is provided:

"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 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 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."

13. Mr Laurence contends that this requires of the Inspector or the Secretary of State a two-stage process. First, the expediency question in sub-section (1) has to be asked and answered; then the question of convenience to the public has to be asked; but the third question which is at issue here is the second expediency question, having regard to the effect which the listed factors may have.
14. By sub-section (8), Schedule 6 to the Act has effect as to the making and confirmation of Public Path Diversion Orders. Mr Laurence submits that section 119 has to be read as a whole and with the provisions of Schedule 6 because they are said to be relevant to the existence of a further discretion on the part of an Inspector or the Secretary of State, which has to be considered after the questions in section 119(6) have been answered.
15. Paragraph 2(1)(b) of Part I of Schedule 6 provides that "if no representations or objections are duly made, or those that are made are withdrawn, the authority by whom the order was made ... may ... themselves confirm the order ..."
16. Mr Laurence submits that that creates a discretion in the local authority to confirm or not to confirm the order. He also points out that the provisions of sub-paragraph (a) of 2(1) contain a similar discretion for the Secretary of State.
17. By sub-paragraph (2) of 2, where the Secretary of State, as here, has caused an inquiry or hearing to be held:

"... after considering the report of the person appointed to hold the inquiry or to hear representations or objections, [the Secretary of State] may, subject as provided below, confirm or make the order, as the case may be, with or without modifications."

18. That is said to contain, through the word "may", a discretionary power in the Secretary of State to confirm or refuse to confirm, notwithstanding that the outcome of the analysis in section 119(6) may point in a different direction.
19. By a new provision in paragraph 2A, it is provided that certain decisions shall be made by a person appointed by the Secretary of State. Those decisions include the one at issue here.
20. Mr Laurence submits that the upshot of those provisions is, as I have indicated in setting them out, that under sub-section (1) there is an expediency question and a discretion question. The same expediency question then arises in the first part of section 119(6). After the "convenience" question, there then follows a second expediency question in section 119(6), and that is followed, he says, by a further discretionary power in the Schedule which has to be considered.
21. Following that analysis, he says that the factors omitted in paragraph 70 and the actual historical integrity of the footpath fell to be considered in a different way from that in which they were considered. He submits that they fell to be considered when the Inspector was considering expediency under section 119(1). They all fell also to be considered again in section 119(6) and again when the discretionary power that he says exists came to be considered. But he submitted that the structure had to be appreciated in order to understand that, if the questions and the factors were considered at different stages, the background to their consideration would be different, and that could affect the weight that was given to them at various stages and thus affect the outcome.
22. He acknowledges that the structure which he contends for is complex, but says that that is a structure to which the statutory wording enjoins the court, is one which should be followed and is capable of giving rise to a difference in outcome.
23. In my judgment, that analysis is untenable. It is unnecessarily complicated, repetitious and not borne out by the statutory provisions.
24. First, it is clear to my mind that section 119(1) requires a Council, and hence the Inspector, to ask the question whether "it is expedient that the line of the path ... should be diverted (whether on to land of the same or of another owner, lessee or occupier)" "in the interests of the owner, lessee or occupier of the land crossed by the path".
25. I have deliberately altered the order of the wording to illustrate that it matters not whether the phrase concerning the interests of the owner, lessee or occupier comes before the words "it is expedient", comes immediately after them, or comes at the end of the quote. It is perfectly clear that those words concerning the interests of the owner govern the expediency issue at stage 1. The question for the Council and indeed the question for the Inspector is whether it is expedient in the interests of the land owner that the order be made. It is perfectly obvious why such a question has to be asked and answered at the outset. If it is not expedient in the interests of the land owner, it is difficult to see why the order would be made in the first place. But it is undoubtedly an important separate question.
26. It is plainly not an all-embracing discretion because the Council would otherwise be obliged to make an order once it was satisfied that it was in the interests of the land owner that it be made. The purpose of the discretionary power is to enable the local authority to consider other relevant factors which, in my judgment, clearly do include those that are set out more specifically in section 119(6) and any other relevant matters.
27. When, however, the Secretary of State or Inspector is considering the section 119(1) expediency question under section 119(6), he must do so by confining himself to what is expedient in the interests of the land owner. He is not at that stage concerned with the exercise of the discretionary powers which arises once a conclusion has been reached about what is expedient in the interests of the land owner. That wider class falls to be dealt with under the second expediency question in section 119(6).
28. Mr Laurence's submissions accepted, at least at some stage as I understood them, that the expediency issue in section 119(6) was not confined to the specific factors in sub-paragraphs (a) to (c), nor to the effect of compensation on the land onto which the path might be diverted. It could encompass the factors said to be unlawfully omitted in paragraph 70, and indeed the fact of historical integrity. In my judgment, that is the right approach to section 119(6) and expediency. It covers all considerations that are material. The fact that there is a focus given by the statute to specifying factors does not narrow down the scope of expediency in its application at that stage. That is by clear contrast with the scope of expediency in section 119(1) which is directed to what is expedient for the interests of the land owner.
29. So far as the discretion which Mr Laurence contends arises is concerned, in my judgment it is clear that there is no further discretion. The Secretary of State has different powers where he, as Mr Buley points out, correctly, in his skeleton argument, is the recipient of a report from an Inspector. As he is the decision-maker, he may disagree with the conclusions of the Inspector, and that is why the Secretary of State "may" confirm or not confirm the order. That is because he is entitled to come to a different conclusion on the outcome of the statutory questions from that to which the Inspector has come.
30. Where, however, the Inspector is the decision-maker, there is nothing to suggest that there is a residual discretion to come to a view other than that to which the answer to the questions of section 119(6) would otherwise point. I cannot conceive of circumstances in which, having properly answered the section 119(6) questions and concluded that it was expedient in relation to both questions that the diversion order be made, an Inspector (or Secretary of State) rationally could say that nonetheless the order should not be confirmed. It is difficult to see what factors could animate such a decision which were not relevant to the expediency issues under section 119(6). The fact that such a discretion could only lead, if exercised adversely to the decision which would otherwise be arrived at, to an irrational basis, strongly supports my view that the discretion does not exist at all. A discretion only to act unlawfully is a discretion scarcely worth having.
31. The Inspector, therefore, made no error in the structure of his approach. But even if his structure had been wrong, I cannot see that such an error in structure could conceivably have affected the outcome of his decision-making. I found it difficult to follow how considering the same factor at different stages with a different background could lead to a different conclusion unless it was the result of utter confusion caused by the statutory structure for which Mr Laurence contends.
32. I therefore now turn to consider what is said about the two factors which are said to be omitted erroneously in paragraph 70, and historical integrity of the path. In many ways this illustrates the issue.
33. The question that has to be asked under section 119(1) is whether the diversion is expedient in the interests of the land owner. I cannot see that the question of whether the land owner bought knowing the footpath, or bought not knowing of it, or bought taking a chance that he might be able to obtain a diversion order, has got anything to do with whether it is expedient in his interests that the order be made. If it is more convenient, beneficial or advantageous to him, it is expedient in his interests. I cannot see either that the question of whether the order which set a disadvantageous precedent has anything to do with the expediency of the order in his interests, nor historical integrity. Those issues only arise when it comes to the consideration of section 119(6), the second question.
34. Mr Laurence points to areas of concern for the Ramblers' Association, such as where a land owner has set out to make use of the footpath less attractive by works at its edges, hostility en route, and so on, so as to support his expediency argument under section 119(1) or the first part of section 119(6). I am not saying that there are no aspects of the conduct of a land owner which might be relevant when his interests are examined, but if they are irrelevant at that stage, they are capable of being relevant under section 119(6).
35. However, the question then arises whether the paragraph 70 issues were relevant at the second stage under section 119(6). I take precedence first of all. It is accepted that that is relevant and that the Inspector made an error of law in saying that it was irrelevant. But I am satisfied that it would be wrong to quash the decision on that account, and I am satisfied that the high threshold of Simplex is passed. There was no evidence, and none has been suggested to have existed, to justify any concern about precedence. The issue appears to have been presented in as general terms to the Inspector as those in which he dealt with the issue in paragraph 70. It would have been irrational on the basis of that generalised comment for an Inspector to have concluded that an order which was otherwise justified on a careful examination of the facts should be rejected.
36. There are always real difficulties in the way of saying that something which is justified on its own merits should be refused lest another similar case, which must by the same token be equally good on its merits, be refused, and if that other case is bad on its merits, then it is merely a different case from the one before the Inspector. But I recognise that there may be circumstances in which a case is so identical to another that it would raise issues of consistency in the application of policy for different conclusions to be reached, and that an accumulation of such decisions could be seen to be harmful. But such an argument requires to be backed by evidence which could permit an Inspector to conclude that the point was a good one. Here there was no evidence which could have permitted a reasonable Inspector so to conclude. That is therefore plainly not a point which, had he expressed himself differently, could have made a difference. He would have been bound to say he could give no weight to this issue.
37. The second issue concerns what he describes as the contention that it was not legitimate for the applicants to expect that the path should be diverted. It is not entirely clear how the point was put because it is, after all, entirely legitimate for the land owner to make or, in this case, to pursue an application made by a predecessor in title, and in particular where the section 119(1) test has been regarded as fulfilled by the County Council, who have submitted it for confirmation to the Secretary of State. It appears that the argument, which the Inspector referred to as understandable, was no more and no less than the argument that if a person purchases property knowing that it is subject to a footpath, his application to divert it should be regarded as less persuasive, regardless of the other merits, on that count.
38. It is plain that there is no statutory bar to a person making an application in circumstances where they have acquired the property with knowledge. Indeed, that would normally be the position that appertains, otherwise one is looking at existing land owners who bought before the footpath existed and those who inherited the property.
39. I have very real doubts as to whether the concession made by the Secretary of State that this factor is legally relevant can be correct, any more than it could be correct that a person who makes an application for planning permission on property he owns is to face an argument that he ought not to have bought the property for that purpose because he knew that the relevant building did not exist on it.
40. There may be circumstances in which such an approach could be a legitimate counter to reliance by the purchaser on certain very personal circumstances that must have weighed in his mind at the time of purchase. But here, although there is a particular personal circumstance, that is not one which appears to have been the focus of this particular attack. I am glad to say that because it would have been an extremely mean-spirited approach had it been. So the question of the relevance to the purchaser's knowledge of the footpath at the time of purchase was dealt with at the level of generality which makes me strongly doubt its legal relevance, the Secretary of State's concession notwithstanding.
41. In these circumstances, had the Inspector said that the fact that they had bought with knowledge that there was a footpath was relevant, he would have had to continue by saying that they had bought with knowledge that there was an application made by a predecessor which was being pursued; he would still have pointed out that there would be successors in title in due course who would also benefit from the diversion order since it runs with the land and is not personal.
42. As I say, all those factors give weight to my concern about the concession that this issue is relevant at all. But if it is relevant, it is not an issue which, simply and generally expressed as it was, could have been given any weight, and certainly none, notwithstanding that the Inspector said it was overall a difficult balance to make, which could conceivably fairly or rationally have led to a different decision.
43. The final point concerns historical integrity. The Inspector in fact spends between paragraphs 51 and 58 dealing with the extent to which there would be an impact on such enjoyment as users of the footpath gained from knowing or believing that they were using a footpath of historic interest. The Inspector noted that it was not clear that the route on the definitive map was an unchanged historical route and explained why. He said:

"The idea that if one walks the current path one is necessarily walking in the footsteps of many previous generations is misconceived, in my view."

But he did accept that the mill, close to which the footpath currently passes, was an ancient site even if the current building was relatively recent.

44. There can be no criticism, nor was any made, of his treatment of the enjoyment of the historical integrity of the path. Rather a different point was made, which was that the Inspector had not taken account of the fact of historical integrity of the path regardless of the contribution that made to the enjoyment of the path. No concession was made by the Secretary of State in relation to this matter, as I understand it. It is a difficult point to make given that, in paragraph 53, the Inspector does deal with the extent to which the path has any historical integrity. But, in any event, Mr Laurence accepts that the precise distinction between the enjoyment of historical integrity and the fact of historical integrity, regardless of whether it is enjoyed or not, was not a point that was deployed before him. He says that it is a point which could have been picked up by the Inspector from the material before him.
45. In my judgment, such a peripheral point, and not drawn to his attention, is not one which can found a challenge to the lawfulness of the decision. It is very much a point on the margin of the case, which, if consideration specifically is required to be given to it, does at least require the person who seeks to benefit from it to raise it in their submissions to the Inspector.
46. For all those reasons, notwithstanding the admitted errors, I refuse to quash this decision in the exercise of my discretion.
47. MR BULEY: My Lord, I am very grateful. I should just mention one very minor point for the transcript. Mr Lord said the Simplex case as being 1987; it was 1989.
48. MR JUSTICE OUSELEY: Thank you.
49. MR BULEY: My Lord, I have an application to make. Before I make it, I should draw attention to a slightly unusual feature of the costs position. Can I ask my Lord just to take up the factual bundle for a moment?
50. MR JUSTICE OUSELEY: Just give me a moment.
51. MR BULEY: Yes, of course.
52. MR JUSTICE OUSELEY: The trial bundle?
53. MR BULEY: Exactly, yes, sorry. (Pause)
54. MR JUSTICE OUSELEY: Yes.
55. MR BULEY: And if my Lord can turn up page 60 at tab 7. This was a consent order providing for the third and fourth defendants to be joined, and my Lord will see point 4 in the order was that there should be no order as to costs between the claimant and the third and fourth defendants, which is no doubt why my Lord will not see Mr Simpson jumping to his feet.
56. MR JUSTICE OUSELEY: So that is it?
57. MR BULEY: My Lord, I do have an application for costs, and I do not seek my full costs of the proceedings for reasons that my Lord will appreciate, namely we offered various consent to judgment. What we do make clear is that if the case proceeded to trial, and if the wider matters which we have vigorously contested were to continue to be contested, then we would seek our costs arising out of that. So I do have an application for my costs of effectively fighting the case on those issues from September and my costs of today. My Lord, I doubt a schedule has reached you. It may be that I should just hand one up. I do not know if my Lord needs to hear me further on the principle at this stage.
58. MR JUSTICE OUSELEY: No. Do you want to say anything, Mr Laurence?
59. MR LAURENCE: No, my Lord.
60. MR JUSTICE OUSELEY: There will be an order for costs in the sum in the schedule.
61. MR BULEY: I am very grateful. Thank you.
62. MR LAURENCE: Could I raise one thing myself, my Lord?
63. MR JUSTICE OUSELEY: Yes.
64. MR LAURENCE: I will ask formally, if I may, for permission to appeal. But, my Lord, just on the judgment, your Lordship referred to, and I know this can easily be put right, but you referred to section 119(2)(b), I think it was, and you linked that with my question 2. My question 2 in fact is directed to the words in sub-section (6), "further that the path or way will not be substantially less convenient to the public in consequence of the diversion", and therefore it is a matter for your Lordship how you put that right. What I was effectively saying, if you remember, was that there could have been a question 5.
65. MR JUSTICE OUSELEY: You are quite right.
66. MR LAURENCE: My Lord, the other point I noticed was that at one point where your Lordship began the sentence along the lines of, "I cannot conceive of circumstances in which the Secretary of State may conclude", you used the word "made" twice when I think you meant "confirmed".
67. MR JUSTICE OUSELEY: If both of those are in, that would be very helpful. Thank you very much, Mr Laurence.
68. I refuse leave, but I will extend time for you to consider if you want go further. It is a second appeal, is it not? Do you not have to go to the Court of Appeal straight away?
69. MR BULEY: It is a slightly moot point. It is an application under the schedule rather than an appeal. I think it may not be a second appeal. Perhaps my Lord can rule on it.
70. MR JUSTICE OUSELEY: What I am going to do is I am going to extend time for you to apply to the Court of Appeal for appealing until two weeks after you receive the approved transcript.
71. MR LAURENCE: I am sorry, my Lord?
72. MR JUSTICE OUSELEY: I extend time until two weeks after you receive the approved transcript in which to lodge the notice of appeal.
73. MR LAURENCE: Would you give me more than that if I get the transcript tomorrow, for example?
74. MR JUSTICE OUSELEY: You will not. You can make your application within two weeks. I think you normally have two weeks, do you not?
75. MR BULEY: I think it is normally three.
76. MR JUSTICE OUSELEY: You can have three weeks from when you receive the approved transcript to make your application.
77. MR LAURENCE: Thank you for anticipating that application.