Richard Humphreys QC sets out points for councils, vendors, purchasers and owners of adjacent land when it comes to the diversion of public paths.
The recent decision of the High Court (Lieven J.) in The Open Spaces Society v Secretary of State for Environment, Food and Rural Affairs  EWHC 1085 (Admin) “the OSS case”) considered the relevant considerations to be taken into account by a council when determining whether to exercise the power to make a Public Path Diversion Order (PPO) pursuant to section 119 of the Highways Act 1980 (as amended). The decision raises points for councils, vendors, purchasers and owners of adjacent land.
S.119 (1) empowers a council to make such an order (which must be submitted to the Secretary of State for confirmation unless the order is unopposed) firstly
“where it appears to a council … 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).”
In R (Hargrave) v Stroud District Council  EWHC Admin 1128 Mr M. Supperstone QC, sitting as a deputy High Court Judge (as he then was), held that the first test is “a low threshold”.
Secondly, s.119 (6) provides that an order “shall not” be confirmed “unless [the relevant decision-maker is]
“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 [thirdly] 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.” 
The court in the OSS case referred to s.119 as laying down 3 “tests”; the first 2 could be regarded as “gateway” requirements, the third as involving a consideration of matters (a) – (c) and then, as a matter of statutory interpretation – this is not expressly set out in the statute but was considered to be what Parliament must have intended - a weighing of the outcome of that consideration against the outcome of the first 2 tests to reach an overall conclusion as to expediency.
The facts, in brief, were that a footpath ran through the garden of Manor Farm (the property had ceased to be a working farm in 2007), passing close to the main house. The landowners, who had purchased the property in 2015, requested the council soon after to make a PPO to divert the footpath away from the house and its garden so as better to preserve both privacy and security. The diversion was opposed by the OSS.
In respect of the first test, the Inspector recorded that the present owners had particular concerns over their privacy given their high media profile . She found that there was a considerable impact on their privacy, both in terms of people on the footpath being able to look into certain windows of the property but also looking into the garden, including the terrace and croquet lawn. She found that it was in the interests of the owners for the path to be diverted.
In respect of the second test, the Inspector found that there would be a negligible impact on convenience from the diversion and noted that there was consensus at the hearing that the new path would not be "substantially less convenient to the public" than the existing path.
In respect of the third test, the Inspector took the view that there would be a diminution in public enjoyment, but this would not be significant in terms of the effect on the use of the path as a whole (of which the section in question comprised only 7%). The Inspector then balanced the interests raised by the first 2 tests against the outcome of the third test:
“In this case, there is a relatively minor loss of public enjoyment of the path as a whole which must be weighed against the interests of the owners/occupiers. On balance, I consider that the benefits to the owners and occupiers outweigh the loss of public enjoyment. As such it would be expedient to confirm the Order.”
The Claimant’s essential argument had been that the factors in s.119(6) (a), (b) and (c) were the only matters which could be taken into account when determining expediency under that sub-section; and that the Inspector had therefore erred in law by taking into account the benefit to the landowner of the diversion when assessing expediency in s.119(6) as she should, in the Claimant’s view, have considered only the matters in (a) to (c) at that stage of her analysis.
As, however, the court noted:
“If the reason for the diversion is the benefit to the owner then the decision-maker must be able to consider what weight is to be given to that benefit, depending on how great the benefit is judged to be. Equally, on [counsel for OSS’s] construction, the degree to which there is a benefit to the enjoyment of the public by the diversion of the path is irrelevant. Again, that makes no sense, particularly when it is borne in mind that under s.119 (1) the application for the diversion could be made by the local authority on the grounds that it is in the interests of the public for the path to be diverted. … the scale of any benefit to the public must in my view be a relevant consideration. [Counsel for the Secretary of State] pointed to the other public interests that would be taken out of the expediency balance, such as the interests of agriculture, forestry or biodiversity. [Counsel for OSS’s] answer is that these are taken into consideration at the order-making stage, but in my judgement that is no answer. The biodiversity impacts may be such as to be an important element of the decision whether or not to confirm the order. It again makes no sense for the decision-maker not to be able to take them into account in deciding expediency at the Test 3 stage.”
The breadth of the considerations which may legitimately be taken into account by the council is thus emphasised.
Vendors and purchasers
The judge noted the Inspector’s recording of the argument of the Open Spaces Society that the owners had bought the property in full knowledge of the existence of the footpath and the Inspector’s reference to the case of Ramblers Association v Secretary of State for Environment, Food and Rural Affairs, Weston and others  EWHC 3333 (Admin) (“Weston”); which case, the judge observed, “made clear that owners could still make applications in those circumstances.”
The factual context in that case was that the previous owners of the property in question had made the application for the order. The Inspector had there rejected as irrelevant an argument 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 Judge (Ouseley J.) in Weston had addressed the issue as follows:
“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. …. [That issue] only arise[s] when it comes to the consideration of section 119(6) ….
37. … 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.”
Thus (1) there is no statutory bar to a person making an application in circumstances where they have acquired the property with knowledge; (2) the judge clearly doubted the relevance of an owner having purchased with knowledge of the footpath at any rate where only “simply and generally expressed as [the issue] was”, rather than particularised and used to counter a particular personal circumstance relied upon; and it is clear that this doubt would apply irrespective of the fact that the owner’s predecessor had already made the application in that case; (3) in any event it was not a relevant issue as regards the first test (whether diversion in the interests of the landowner).
When a sale/purchase is in prospect the existence of a footpath may of course affect the market price and/or the actual price ultimately paid. Those respectively acting for the vendor and purchaser may therefore need to advise their respective clients, during the period of negotiation, as to the prospect of a PPO being made and confirmed.
It will be important in this regard, too, for the purchaser in particular to be made aware of other provisions of the Highways Act 1980 which relate to compensation and the expense of provision of the new site of the path.
Section 119 (5) provides that:
“(5) Before determining to make a public path diversion order on the representations of an owner, lessee or occupier of land crossed by the path or way, the council may require him to enter into an agreement with them to defray, or to make such contribution as may be specified in the agreement towards,—
(a) any compensation which may become payable under section 28 above as applied by section 121(2) below,
[S.28(1) provides: “(1) Subject to the following provisions of this section, if, on a claim made in accordance with this section, it is shown that the value of an interest of a person in land is depreciated, or that a person has suffered damage by being disturbed in his enjoyment of land, in consequence of the coming into operation of a public path creation order, the authority by whom the order was made shall pay to that person compensation equal to the amount of the depreciation or damage.”]
(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.
[S.27(2) provides: “(2) It shall be the duty of the highway authority to carry out any works specified in a certificate under subsection (1) above, and where the authority have carried out the work they may recover from the authority on whom a copy of the certificate was served any expenses reasonably incurred by them in carrying out that work, including any expenses so incurred in the discharge of any liability for compensation in respect of the carrying out thereof.”]
Thus, the owner considering and subsequently requesting diversion may well have to agree with the council to pay the compensation due for any diminution in value and damage for disturbance caused to the owner of land across which the path may be diverted; as well as the expenses of the highway authority in providing the new path.
So advice may need to be given not only as to the prospects of successfully obtaining a public path order but the cost implications of so doing (including the costs of (i) representation at a public inquiry if there are objections ; (ii) compensation to the adjacent landowner; (iii) the highway authority’s expenses of providing the path on the new site.
Owners of adjacent land
Owners of adjacent land over which a path is proposed to be diverted have a right to be notified  by the council and to make representations  before the order is confirmed; as well as a right to receive compensation .
In the OSS case, Lieven J. addressed the following argument relating to her conclusion that the third test was not limited to the considerations set out in s.119(6) (a) – (c):
“[Counsel for OSS] is correct that the effect of this construction is that a landowner could purchase land at a discount because of the existence of a path across the land. He could then apply for a diversion of that path onto third party land, thus potentially devaluing that land and reducing the third party owner’s enjoyment of his land. The third party owner would be entitled to compensation but the applicant landowner might still well end up increasing the value of his property by more than the compensation he had to pay. However, I do not take this scenario to mean that the Secretary of State’s construction of the section is wrong. It is unlikely, though not impossible, that the diversion in this scenario would be approved if there was not a clear public benefit. But in any event, that there is provision for compensation makes it quite clear that the applicant owner can benefit by the diversion at the potential expense of the third party owner. There is nothing unlikely about Parliament accepting a scenario whereby the applicant landowner does gain a benefit and the third party a disbenefit in circumstances where there is a benefit in the public interest in the diversion.”
The OSS case confirms that the third test is not limited to a consideration of the matters set out in s.119(6)(a)-(c) of the Highways Act 1980 (as amended); that, for example, the interests of the landowner can be weighed against these considerations. It also, consequentially, underlines the need for vendors and purchasers to consider the prospect of achieving a PPO and the cost thereof when negotiating the sale price of the land the subject of the existing path; and for owners of adjacent land, over which the path is proposed to be diverted, to make representations before the order is confirmed . Finally the OSS is another reminder of the desirability of Parliament thinking more carefully about the wording it uses in its legislation, to reduce the need for expensive litigation.
 The compensation provisions are considered below.
S.119 (6A) also provides that:
“The considerations to which-
(a) the Secretary of State is to have regard in determining whether or not to confirm a public path diversion order, and
(b) a council are to have regard in determining whether or not to confirm such an order as an unopposed order,
include any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would create or extinguish a public right of way.”
 Charles and Rebekah Brooks.
 Highways Act 1980, Schedule 6, paragraph 2(2).
 Highways Act 1980, Schedule 6, paragraph 1(3)(b)(i).
 Ibid, paragraph 1(2)(c).
 Pursuant to s.28, as applied by s.121. See above.
 If no representations are made, the council may themselves confirm the order: Schedule 6, paragraph 2(1)(b).