Our successful diversion of a footpath out of the garden of Manor Farm, Little Rollright in Oxfordshire following a hearing in late 2019 was challenged by the Open Spaces Society by an application to the High Court. They claimed that the Inspector had got the law wrong when she confirmed the diversion and that DEFRA guidance was incorrect.
There are three statutory tests to be satisfied for a path diversion to be confirmed. The diversion must be in the interests of the applicant or the public; the diversion route must not be substantially less convenient; and the diversion must be expedient taking factors into account including the impact on public enjoyment.
In its Advice Note, which gives guidance to the parties and the Inspector, DEFRA had stated that when addressing the third, “expediency”, test, it was necessary to balance the impact on public enjoyment against the benefit to the applicant. DEFRA considered this to be applying a previous judicial view of the law in a case called “Young”. If there was marginal benefit to the applicant and an adverse impact on public enjoyment, then on balance the diversion should not be confirmed.
For some time, practitioners, councils and applicants had approached the third test by looking at this balance between public enjoyment and landowner benefit. It was on this basis and applying the Advice Note that I argued our case before the Inspector at last year’s hearing where she had reached her view.
The matter came for hearing in April and the judgment followed in May. The thrust of the Open Spaces Society’s case was that in applying the third test, the benefit to the landowner/applicant was to be ignored and only the impact on public enjoyment was to be considered. As the Inspector had come to the view that there would be some loss of public enjoyment because of the diversion, this outweighed any other consideration and the diversion should not have been confirmed.
In her judgment, Lieven J found that the DEFRA guidance was wrong and that the earlier case upon which the guidance was based had not contained a “balancing” test. Nonetheless the Judge was satisfied that the third test did not exclude other factors when determining the expediency of a diversion proposal and that it was right to include the benefit of the diversion for the applicant. She rejected the challenge – see OSS v SSEFRA  EWHC 1085 (Admin).
So for now the balance test has gone to be replaced with a broader consideration of all relevant matters.
And what has emerged as a very relevant matter in the current health crisis is that the presence of walkers, riders and cyclists in the garden of a house or in a farmyard or other enclosed space exercising a public right of way is a bad thing when the owners of the land are following guidance and are self-isolating or maintaining social distancing, or protecting their health and that of their employees so they can produce the food which the country needs.
We have had several enquiries about securing diversions in these circumstances and the failure of DEFRA to address this by a closure of such paths is frankly shocking. They readily closed down the countryside to prevent the spread of foot and mouth disease but there is no acknowledgement of the health risk created by permitting the ongoing use by the public of intrusive paths.
In the past, landowners’ concerns about coming into contact with the public using a path have been dismissed as hyperbole by user groups. Even at the Manor Farm hearing, just at the end of 2019, we could never have thought that possibly the strongest reason to remove the path from a property garden was the health impact on the owners, yet now in June 2020 it would be justifiably front and centre.
Numerous reports have been written over the last couple of months backed by photographs of paths “illegally” closed by landowners with walkers “up in arms” that their rights have been curtailed. As I have advised several client, this type of attitude that, no matter what the circumstances the public are entitled to walk on a public right of way, serves only to emphasise and build upon the justification for diversions in many cases.
We may no longer be directly balancing competing interests when assessing diversions, but the pendulum has swung towards landowners to secure diversions to protect their health, privacy and livelihoods.