Connaughton, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs & Anor

This matter has a very long history, and the application today is an application by Mr Connaughton for permission to appeal from a decision of Walker J of 19 June 2007, when he refused an application for permission to apply for judicial review of a decision dated 4 August 2006 by Miss Erica Eden, an inspector appointed by the Secretary of State for Environment, Food and Rural Affairs. The decision was made under section 119 of the Highways Act 1980 following a public local enquiry, and was a decision not to confirm a Footpath Diversion Order made by Dorset County Council in December 2004.

I have had the advantage of reading the decision of the Inspector, the judgment of Walker J, the appellant’s skeleton argument, the appellant’s statement, some arguments in the lower court, and in addition, the appellant’s representation dated 13 November 2007. I should mention one unusual aspect of today’s application, which is that at the outset, counsel instructed by the applicant, Mr Byrne, said that his instructions had been withdrawn, and Mr Connaughton therefore conducted the application with great courtesy on his own behalf. He wished to rely on a three-page document and letter from solicitors which had been supplied to the court yesterday, but I ruled at the outset that these raised matters which were not within the application for judicial review, or within the scope (it would necessarily follow) of this application for permission to appeal.

Mr Connaughton asked for an adjournment of these proceedings, because, as he put it, this would otherwise be the end of the road in this long-running matter. I refused the application, because it seems to me that speed is the essence of applications of this kind. On an application for permission to appeal, it is not essential, in the circumstances, for there to be a chance for Mr Connaughton to instruct counsel afresh or to reconsider his grounds for permission to appeal, because the court had all of the available papers, and although counsel might be helpful in the circumstances to develop some of the points, in the circumstances of the case where counsel had actually appeared and had his instructions withdrawn, it would not conform to the administration of justice, in relation to judicial review, for there to be a further delay.

The background which appears from the papers is that the footpath in question crosses the applicant’s property, and has become a bone of contention ever since it was included in a guide to pub walks, and has been used by strangers, to which the applicant and his wife and mother-in-law have objected for some years. It is not necessary for me to describe the layout of the path and the proposed diversion which are set out very clearly in the plan which I have considered, where the important elements of the paths show from C to I Footpath 32, and from D to F Footpath 29, and the proposed diversion from C to D. By section 119(2) of the Highways Act 1980, a public path diversion order is not to alter a point of termination of the path if (a) that point is not on a highway, or (b) where it is on a highway, otherwise than to a point which is on the same highway or a highway connected with it, and which is substantially as convenient to the public. The Council determined that the termination points of both the existing pathway and proposed pathway were the same (that is, on plan A from C to I) but the Inspector concluded that the termination point was point A near Wallhayes, the applicant’s house.

The applicant sought permission for judicial review on four bases: first, that on the proper construction of section 119 of the Highways Act 1980, the Inspector was not entitled to decide that the proposed diversion altered a point of termination of Footpath 32; secondly, if the Inspector was so entitled, she erred in her approach in determining (a) whether a point of termination was altered, and (b) the extent of the proposed diversion; thirdly, that error led to a breach of natural justice in her subsequent exploration of the issues to be decided by her in reaching her decision whether or not to confirm the order; and that error, fourthly, tainted her final conclusions on convenience and the detrimental effect on the public’s enjoyment.

The argument on the point of the termination was that the statute contemplated two stages to the process of confirming a diversion order. The first stage: the local authority had to reach a decision as to whether the Footpath Diversion Order should be made, and then the relevant authority determines whether that order should be confirmed. There was nothing in the language of section 119(6) which requires the body considering the order confirmation stage to revert to consideration of the matter of the termination point in section 119(2). The second ground: that assumes that the Inspector was entitled to revisit the matters in section 119(2), but that the Inspector erred in the approach she took. Now, as to both points the judge considered that the points were arguable. He also said that he could not be sure, despite what the judge considering the matter on paper thought, that if there had been those errors, it would not have led to a breach of natural justice.

Therefore, he proceeded on the basis that the first three points were arguable; but on the fourth issue, which is the general conclusions of the Inspector as to convenience to the public and detrimental effect of the public’s enjoyment of the path, he took the view that even if the first three grounds were arguable, it was not arguable that the fourth ground was a matter in relation to which there was any ground for serious argument on the merits. The applicant’s argument is that the judge failed to appreciate that the Inspector’s errors carried her forward to her overall conclusions and therefore infected her final judgment, and that the judge failed to appreciate that the findings as to the termination point were inevitably relevant to and affected the issues of whether the path would be substantially less convenient to the public as a consequence of the diversion.

The judge reasoned as follows: firstly and ultimately, the applicant would need to overcome that fourth hurdle on the merits; secondly, the Inspector applied the correct test in determining inconvenience to the public; thirdly, the Inspector considered the effect of the diversion in relation to the public’s enjoyment of the path as a whole, irrespective of her conclusions relating to the termination point; and fourthly, the Inspector was right to consider the path as a whole, because the submissions in relation to the additional length, the fact that the new path would be on or continuous to roads, the additional number of stiles, were the same whether the path was from C to I, or C to A.

My conclusion is that whilst it is true that the Inspector found that the new termination point was point F, and that would not be as convenient as point A (and of course, that is a finding very different from finding that the termination point is point I), she did go on to consider in some detail whether the path would be substantially less convenient to the public in consequence of the diversion. She concluded, after taking account of the length of the path, that a significant part would be on roads. There would be more stiles. There would be an exit at point F. There would be a loss of continuation from point E, and there would be a need to avoid (at certain times, at any rate) the football pitch. At paragraph 83 she concluded, after taking into account in particular the loss of views available on what was essentially a path used for leisure, that the diversion would have a detrimental effect on the public’s enjoyment of the path as a whole.

It seems to me clear that the judge was right to point out that the Inspector was at pains to distinguish these findings from her findings in relation to the termination point. In paragraph 64 and 65, she made it clear that she was considering the matter regardless of the termination point, and in paragraph 75 again, she made it clear that she was applying a different test in relation to a different circumstance. I see no grounds therefore for thinking that Walker J was wrong, and so, although I do have some sympathy for the situation which the applicant and his family find themselves, I have no alternative but to dismiss the application.