Rollright Public Path Diversion Challenge

This case relates to what Inspectors should (and should not) consider when deciding whether or not to confirm an order diverting the line of a public footpath, bridleway or restricted byway under s 119(6) of the Highways Act 1980. We represent the Open Spaces Society, a statutory consultee on diversion orders, which is concerned that the Inspector’s decision sets a harmful precedent.

The case is a statutory challenge to the decision by an Inspector appointed by the Secretary of State to divert the route of a public footpath (and extinguish a portion of the existing footpath) over land on the grounds of a Grade II listed 17th century farmhouse in Oxfordshire, whose owner had persuaded the Inspector to make the diversion in the interests of her privacy and security.

The case raises issues of what factors may properly be taken into account by an Inspector considering whether to confirm an order diverting a public right of way. The Open Spaces Society argues that, properly read, s 119(6) of the Act requires that the benefits to the landowner of such a diversion are to be taken into account as a threshold test in deciding whether to make and confirm the order, but cannot be considered again when deciding whether it is expedient to confirm the order, as the Act sets out only specific enumerated factors that may be considered at that stage.

The challenge was dismissed by a High Court Judge in May 2020, who considered that the enumerated factors were not an exclusive list, but allowed for consideration of other factors. In July 2020, permission was granted to appeal to the Court of Appeal by a Lord Justice of Appeal. The appeal was, however, dismissed in February 2021. An application for permission to appeal was lodged with the Supreme Court but this was refused in March 2022.

George Laurence QC and Simon Adamyk of New Square Chambers were instructed as counsel for the Open Spaces Society.