Derren McLeish & Anor v The Secretary of State for Environment Food and Rural Affairs & Anor
[2024] EWHC 532 (Admin)
Grace Bennett v Secretary of State for the Environment, Food and Rural Affairs
12 October 2023
[2023] EWHC 2542 (KB)
High Court
A farmer wanted to move a footpath. The government inspector said no because the new path might be too narrow and wasn't sure it would be maintained. The court said the inspector should have asked the farmer about the maintenance before rejecting the plan and needs to make a better comparison of the old and new paths.
Key Facts
- •Mrs. Grace Bennett (Claimant) applied to divert a footpath (HBW26) on her farm.
- •The Gloucestershire County Council (Defendant) issued a diversion order in 2020.
- •An objection was raised regarding the width of the diverted path.
- •The Secretary of State's Inspector refused to confirm the order in 2023.
- •The Claimant judicially reviewed the Inspector's decision.
- •The dispute centered on the width (2m vs 3m) and maintainability of a 49-meter section of the diverted path.
- •The Inspector found the useable width was reduced to 1 meter due to vegetation.
- •No legally binding maintenance agreement existed before the order.
- •The Inspector's site visit was questioned – she used the permissive path instead of the existing path.
Legal Principles
Judicial review principles apply to challenges against decisions of the Secretary of State's Inspector.
High Court
Section 119 of the Highways Act 1980 sets out the requirements for diverting public footpaths, including the 'expediency' test and whether the diversion would make the path 'substantially less convenient'.
Highways Act 1980
Section 106 of the Town and Country Planning Act 1990 empowers local authorities to enter into maintenance agreements.
Town and Country Planning Act 1990
Section 154(1) of the Highways Act 1980 allows competent authorities to require removal of vegetation obstructing footpaths.
Highways Act 1980
An Inspector must act fairly, consider all relevant material, and give parties an opportunity to address any significant departures from common ground.
Hopkins Developments Ltd v SSCLG [2014] EWCA Civ 470
An Inspector is not obligated to 'cast around' for issues not raised by the parties (Top Deck Holdings v SoS [1991] JPL 961), nor to inquire about additional evidence that might support a party's case (West v SoS [2005] EWHC 729 (Admin)).
Top Deck Holdings v SoS [1991] JPL 961; West v SoS [2005] EWHC 729 (Admin)
In considering footpath diversion orders, an equitable comparison between existing and proposed routes should disregard temporary circumstances preventing or diminishing use of the existing route.
Secretary of State’s Rights of Way Advice Note No. 9
Outcomes
The court quashed the Secretary of State's decision not to confirm the diversion order.
The Inspector acted unfairly by not reverting to the parties regarding the maintenance issue and by not properly comparing the convenience of the existing and diverted paths, failing to consider the state of the existing path's northern section.
The case was remitted for reconsideration.
The Inspector's failure to address the lack of a legally binding maintenance agreement and her improper comparison of path convenience constituted procedural unfairness and errors of fact.
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