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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> MJI (Farming) Ltd, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs [2009] EWHC 677 (Admin) (10 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/677.html Cite as: [2010] 1 All ER 1047, [2010] PTSR 926, [2009] EWHC 677 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10th March 2009

1. THE DEPUTY: Introduction

The South Downs Way is a national trail intended as a bridleway between Eastbourne and Winchester. The Sussex part was completed and opened in 1972. The Hampshire part was opened in 1991 but opened with a missing link. The missing link was across the Meon Valley between Beacon Hill and Old Winchester Hill. There is a long history of trying to complete this link. The Hampshire (Winchester City No 116B) (The Parishes of Exton and Warnford) Public Path Creation Order 2001, which is the subject of this challenge, was one of the orders made to seek to complete the bridleway.

The facts

2. On 26th October 2001, Hampshire County Council made public path creation orders for a suite of potential routes for the completion of the link between what was known as bridleway 11 and a crossing of the A32. There were a number of alternatives proposed. Two orders, numbers 117 and 118, I do not need to trouble about for the purposes of this decision and they were not confirmed. Order 115, which is shown on page 138 of the trial bundle, went from a point identified as A, at the junction of a road identified as the C149 and the bridleway BR11, to a point identified, E, and was proposed as a bridleway. There was an alternative to that order in order 116B, which left the bridleway BR11 at a point northeast of point A and, at a point labeled J, crossed the claimant's land to the same point, point E. From point E, both of the proposed orders contained a route across the claimant's land to a point F, where it joined a track called Beaconhill Lane on another party's land and continued onto a point, G, just shy of the highway land associated with the A32. At that point, the route turned north, again over the claimant's land, to a point H, where the crossing of the A32 was proposed. Both of these orders were promoted for consideration at a public inquiry.
3. From 16th February 2004 to 23rd March 2004, the public inquiry was held. Much of the dispute at that inquiry centred around the alternative routes which have been proposed to get from the west to point E: whether across land of high nature conservation value from point A to point E or across the land of the claimant interfering with its shooting activities from point J to joint E.
4. On 5th August 2004, the Inspector gave an interim decision in relation to the proposals. He acceded to the objection of English Nature, as they then were, to the extent of downgrading order 115 across their land to a footpath two metres wide because of concerns about the impact of cycling and horse riding on the nature conservation nature of that land. In relation to order 116, he proposed confirmation of that order, subject to changes which affected land which had not been the subject of the order and therefore, in accordance with the legislative framework to which we shall turn in a moment, he had to give notice to allow for advertisements of and further representations o that proposal. Those modifications were advertised in October 2004.
5. The claimant raised objections to that course and contended that there had been errors of law made by the Inspector which, it should be noted, are unrelated to the grounds of challenge now mounted. The Planning Inspectorate decided to hold an inquiry, following receipt of a statutory objection, to consider evidence in relation to the proposed modifications.
6. The principal controversial matter was in fact the details of the crossing proposed for equestrians, cyclists and pedestrians of the A32 at point H. This was because the claimant took the view that it was not in a position to dispute the conclusions which had been made about the part of the route between J and E as those had been effectively explored and concluded upon in the context of the 2004 inquiry, subject to the legal matters which they had raised which could only be pursued by way of some High Court challenge at the conclusion of the consideration of the order.
7. Between 10th May 2006 and 10th July 2006, the reopened inquiry sat for a total of six days. Shortly before the inquiry opened, Hampshire County Council wrote a letter dated 15th March 2006, which enclosed a plan at page 107a of the trial bundle, which flowed from their assessment that they needed to include further land in the order between the point where the route left Beaconhill Lane at point G and the point where the A32 was crossed to the north at point H. During the inquiry their case changed again and on 16th June 2006 Hampshire County Council produced another plan which showed an even greater area of land to be included in the route between G and H to facilitate the crossing.
8. Debate at the inquiry principally focused on the safety of that crossing. The large area of land proposed within the plan which had been produced on 6th June 2006 was required to address the need expressed in design guidance and the views of highway engineers that it would be necessary to segregate the equestrian users from the other users, in particular, and corral them at the crossing point, affording them adequate visibility to see along the road from a sufficient distance back from its edge so as to, for instance, safeguard horses from being spooked by traffic using the A32 where the evidence had found that traffic generally travelled at around a hundred kilometres per-hour. Ultimately, having considered all the evidence, the Inspector concluded that the crossing would be safe. However, that was not an end of the matter, because the crossing design required the creation of visibility splays, the land for which needed to be acquired and which was in the claimant's ownership. It also required stopping up part of the road into which the users would be crossing, namely Peake New Road.
9. The Inspector's conclusions led to a further interim order decision, firstly, confirming order 115 as a footpath two metres wide between points A and E and, secondly, proposing modifications to order 116B to permit its creation as a bridleway of four metres in width, together with:

"At the end of the description in part 1 of the Schedule add the following words: 'The path between points G and H has a width varying between 7 metres at its junction with Beaconhill Lane (G) and 23 metres at its junction with Road A32 as is shown coloured pink on Plan 3 attached hereto.'"

This proposal again had to be advertised and was in November 2006.

10. On 14th December 2006, the claimant's solicitors wrote to the Planning Inspectorate. They wrote stating that they could not object to what was being proposed by the Inspector since to do so would simply be to rerun the arguments that had already been rejected at the inquiry. They also pointed out that the Inspector could not wait and see whether the obstacles which had been identified in terms of the CPO for the visibility splays and the partial stopping up of Peake New Road had been resolved any longer. They exhorted the Inspector to proceed to a decision and, in the absence of the resolution of those obstacles, encouraged the Inspector to the view that he should refuse to confirm the orders.
11. On 18th April 2007, the Inspectorate wrote to Hampshire County Council, setting out the Inspector's view that he could not further consider the confirmation of the modifications without substantial progress having been made on the implementation of the required safety measures at the crossing, which, of course, included the visibility splays and the measures to stop up Peake New Road. On 25th May 2007, Hampshire County Council wrote to the Inspectorate but a reasonable summary of that letter is that little progress had been made. On 15th June 2007, the claimant's solicitors wrote making further representations in relation to making progress with the conclusion of the proceedings. Importantly in the final paragraph of that letter they wrote as follows:

"21. Finally, we apologise that we did not deal, in our letter of 14 December 2006, with the possibility of the Inspector's confirming order 116B so that a footpath is created between Beacon Hill (ie in the circumstances what is now the cul-de-sac end of the route of confirmed order 115B at point E on the order map) and the A32. We agree that that possibility is indeed open to the Inspector and we confirm that MJI would have no objection to such a course. For convenience we have referred in the body of this letter to the impending decision of the Inspector as being a decision as to whether or not to confirm the order and we acknowledge that in fact, as the Planning Inspectorate has pointed out in the letter of 18th April 2007, it would be a decision as to whether or not to confirm the order or to confirm it as such a footpath."

12. On 30th October 2007, the Inspector gave further guidance and, having set out and considered the further representations he had received, concluded as follows:

"24. To summarise, the inspector intends not to come to a final decision on the Order until he hears from the order making authority either that it sees no realistic prospect of the necessary safety measures being achieved, or until it is clear to him that there is no realistic prospect of them being achieved, or until he is informed that the safety measures have been achieved. The inspector intends to ask that, in the meantime, he be informed of any relevant factors and also intends, if necessary, to reopen the inquiry. If he decides that he cannot confirm the Order so as to create a bridleway, he will consider modifying it so that it creates a footpath linking the one already confirmed over Beacon Hill to the A32."

13. On 27th November 2007, Hampshire County Council wrote essentially raising no objection to that course. On 11th December 2007, the claimant's solicitors again made further representations but it is fair to say none which bear on their complaints in this case and none which relate to the proposed dimensions and features of the alternative of a footpath to a bridleway.
14. Following this, on 5th March 2008, the Inspector made his decision. Within the report the reasons and substance of his decision are as follows:

"16. It is almost a year and a half since the publication of my interim decision in October 2006. There has been very little progress towards implementing the required safety measures. Such progress as has been achieved has been very slow; it took 9 months, apparently, for just the very first steps to be taken to acquire land. I was not informed of the reasons for the delay until November 2007, and since then there has apparently been no further progress. Although it now appears that funding problems have been resolved I have been given no estimate of any kind as to how long the process might take. No part of this delay appears to be directly attributable to MJI.

Options

17. The Order as I proposed to modify it following the 2006 inquiry cannot be confirmed at the present time. I have carefully considered the other options in the light of my previous decisions and all the relevant correspondence I have seen since. Non-confirmation when there is the possibility of completing the pedestrian route of the South Downs Way without disagreement is not a sensible option. The choice is effectively between confirmation now to create the footpath link or further delay with the intention of confirming the Order so as to create a bridleway, provided the safety measures are in place and nothing else has arisen which would mean that it was no longer expedient to confirm the order.

18. In October 2006 I confirmed the Hampshire (Winchester City No. 115B) (The Parishes of Exton and Warnford) Public Bath Creation Order 2001. The route created is intended to form part of the pedestrian route of the South Downs Way. It runs over Beacon Hill, but ends in a cul-de-sac at its base (point E on the Order plan). If this order (ie the 116B Order) is confirmed, that footpath would no longer be a cul-de-sac. In my opening remarks at the 2006 inquiry I indicated that, if this Order was not confirmed so as to create a bridleway, then it would be possible to modify it so that it created a footpath between what is now the cul-de-sac end of the newly created footpath and the PNR crossing, thus creating a pedestrian through route. No party at the inquiry suggested that this would not be an appropriate course of action in those circumstances...

21. If I were to confirm the order so as to create a footpath, then if HCC and NE wished to pursue the creation of a bridleway on the Order route a new order would have to be made. HCC, in its letter of 25 May 2007 to the Planning Inspectorate, stated that: if the question of confirmation is determined negatively now ... HCC and NE [would have to] start all over again, with consequent huge waste of public money and everyone's time and effort. It seems to me that that may be overstating the case. Non-confirmation of the Order to create a bridleway would not negate the conclusions I reached in my previous interim Order decisions as to the expediency of confirming the Order provided certain safety provisions were made. The making of a new order and submitting it for confirmation (on the assumption that there would be objections) while the other safety matters were being progressed would not, I consider, be significantly more difficult, time consuming or expensive than continuing with the present Order. The confirmation of the Order so as to create a footpath would not preclude the later creation of bridleway rights over the route provided the tests in Section 26 of the 1980 Act were met.

22. It is impossible to predict the outcome of HCC's plans to complete the South Downs Way with a bridleway route across the Meon Valley. Were I to decide to delay consideration of the Order pending the implementation of the other necessary safety measures then, for example, MJI might, as it has intimated, oppose any measures compulsorily to purchase land, or challenge my interim decisions. Were I to decide to confirm the Order now so it created only a footpath it would not be for me, for example, to suggest to HCC that it should re-make the Order, or, if it did, to anticipate objections or advise how the Order might be progressed in parallel with the other measures HCC believes are necessary to achieve a safe equestrian crossing of the A32. None of these matters is, or should be, for me to influence, beyond inviting the various parties to note the conclusions I have come to in my interim decisions.

23. It is reasonably clear, however, that whatever I decide will not result in the speedy completion of the South Downs Way National Trail for horse riders, whereas a decision now to confirm the Order to create a footpath will result in satisfaction of the undisputed need for a pedestrian link."

15. The Inspector then went on to confirm the order subject to manuscript amendments. His confirmed order included as part 1 of the schedule a description of the land and part of that description read as follows:

"From G the path runs northwards for 55 metres through a belt of trees to Road A32 at a point (H) opposite the northern part of Peake New Road. A total length of 1,165 metres. The path is 4 metres wide except between G and H where it has a width varying between 7 metres at its junction with Beaconhill Lane (G) and 23 metres at its junction with the A32 road."

The plan attached to the order contained a dashed line indicating the centre line of the route.

16. Thus the effect of the decision was to create a footpath four metres wide from the end of order 115 at point E to G and then incorporate between G and H a large area of land which had been predicated on the requirement for a bridleway crossing.

The law

17. Central to the issues in this case are the provisions of the Highways Act 1980. Section 26 of the Highways Act 1980 provides as follows:

"26(1) Where it appears to a local authority that there is need for a footpath, bridleway or restricted byway over land in their area and they are satisfied that, having regard to --

(a) the extent to which the path or way would add to the convenience or enjoyment of a substantial section of the public, or to the convenience of persons resident in the area; and

(b) the effect which the creation of the path or way would have on the rights of persons interested in the land, account being taken of the provisions as to compensations contained in section 28 below,

it is expedient that the path or way should be created, the authority may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed by them as an unopposed order, create a footpath or bridleway over the land.

...

(4) A right of way created by a public path creation order may be either unconditional or subject to such limitations or conditions as may be specified in the order.

(5) A public path creation order shall be in such form as may be prescribed by regulations made by the Secretary of State, and shall contain a map, on such scale as may be so prescribed, defining the land over which a footpath, bridleway or restricted byway is thereby created."

18. Other elements pertinent to the creation of a footpath or bridleway are contained within schedule 6 of the Act. In particular, schedule 6 paragraph 2(2) provides for hearings to be occasioned if a representation or objection has been duly made and not withdrawn. Further, paragraph 2(3) provides for the making of modifications to the order and the consideration of those modifications by the Secretary of State following the convening of a public inquiry. This piece of law is relevant to the requirement which occurred in this case for the holding of a second inquiry in relation to the additional land proposed to be required for the order.
19. Paragraph 3 of schedule 6 provides for the making of regulations to assist in the creation of footpaths and bridleways and these are the Public Path Orders Regulations 1993. In particular, regulation 2 of the 1993 regulations provides as follows:

"2(1) An order shall be in the appropriate form set out in Schedule 1 to these Regulations, or in a form substantially to the like effect, as follows—

(a) the form of order for a public path creation order shall be Form 1;

(b) the form of order for a public path diversion order shall be Form 2;

(c) the form of order for a public path extinguishment order shall be Form 3;

...

(3) The map required to be contained in an order shall be on a scale of not less than 1:2500 or, if no such map is available, on the largest scale readily available."

Regulation 3 provides for the form of notices of an order being made and then within the schedule there is a pro forma or precedent of a Public Path Creation Order which includes specification of the land over which the order is to be made and which provides for the supply of a map associated with the order identifying the route and alignment of the path.

20. Provisions in relation to the challenge to orders which have been confirmed has been the subject of amendment but helpfully, within the grounds of challenge, the amendments have been incorporated into a recitation of the current statutory formulation which provides in aggregate as follows. It is contained within schedule 2, paragraph 2:

"If a person aggrieved by a order to which this Schedule applies desires to question the validity of it, or of any provision contained in it, on the ground that it is not within the powers of this Act or on the ground that any requirement of this Act or of regulations made under this Act has not been complied with in relation to the order, he may, within 6 weeks from the date on which the notice required by paragraph 4 of Schedule 6 is first published, make an application for the purpose to the High Court."

Paragraph 3 of schedule 2 provides as follows:

"On any such application, the Court--

(b) if satisfied that the order, or any provisions contained in it, is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by a failure to comply with any such requirement as aforesaid, may quash the order or any provision contained in it, either generally or in so far as it affects any property of the applicant."

Amendments

21. During the course of the hearing, Mr Laurence QC, who appears on behalf of the claimant, applied for two amendments to be made to his proceedings. They were firstly to rely upon arguments to which I shall turn in a moment in relation to issues of expediency as well as issues of need under section 26. They were, secondly, to raise a concern in relation to the adequacy of the description of the footpath between points G and H in the light of the descriptions which I have set out above.
22. I am satisfied that no prejudice would arise from the making of these amendments that could not, if necessary, be addressed in relation to matters associated with costs and in those circumstances I allow the amendments to the proceedings.

Not within the powers of the Act

23. The claimant complains that the creation of this footpath at a width of four metres over his land and at a greater width between G and H is not within the powers of the Act. This is because, it is said, the conclusion of that land is not necessary, or alternatively not expedient, to the creation of a footpath, these being the first two tests set out in section 26. These dimensions of the order were only promoted to facilitate a bridleway and no-one had suggested that they were either necessary or expedient for a footpath. This contention is supported by Mr Laurence by a construction of section 26(1) which incorporates into the assessment of the need for and expediency of the footpath the question not just whether it is necessary and expedient to have a footpath in the location proposed generally but also the necessity and expediency in detail of having the footpath in the position or alignment proposed and of the length and width proposed. As a matter of logic, he submits, the need for detail would also be required at the third stage of the exercise, namely when considering whether as a matter of discretion to make the order.
24. On behalf of the defendant, Mr Coppel says that such a construction of section 26 is not appropriate. He submits that the assessment required by section 26(1) is a general one and does not require the detail of alignment, length and width for its assessment. Provided that the specificity of the proposal is sufficient to understand whether section 26 has been passed, one does not need to have, he suggests, the detail of alignment, length and width. Thus in this case the Inspector was entitled to make the order that he did and the details of the land affected were not in point provided the test had been met. In his skeleton, Mr Coppel observes that the 1980 Act does not differentiate between footpaths, bridleways and restricted byways by reference to their physical attributes and the additional dimensions of which the claimant complains are not required for a bridleway nor alien to a footpath. This point is especially the case, he submits, where, as here, no point has been taken about the dimensions of the footpath, notwithstanding the fact that there were plenty of opportunities to do so.
25. Having considered the arguments, I support the claimant's construction and consider that, when assessing the need for the footpath and whether it is expedient to create it, having regard to the public amenity and the impact on the landowner affected, the section requires those tests to be applied both in respect of the principle of the footpath but also to the detail of its alignment, length and width. The reasons for me concluding that this is correct are as follows.
26. Firstly, whilst there was focus during the course of argument on the use of the definite and indefinite articles through the section, and whilst that is of some relevance, to my mind the most important thing is to read the Act as a whole and together. Under section 26(1) it is the proposal in the order which must sit the test. That means sitting the test must include examination of the land affected as set out on a map (see section 26(5)) together with specified limitations and conditions (see section 26(4)). To my mind regulation 2 of the 1993 regulations reinforces this point and, reading these provisions together, makes clear that the section is expecting the exercise of seeing whether the tests of section 26(1) have been passed and measured against the proposal in detail.
27. Secondly, the continuation of the order has important consequences. It effectively conveys the fee simple of the land affected to the Highway Authority. It also creates a right to compensation for the land which has been so taken. In addition, it can give rise to potential criminal proceedings in the event that the highway is obstructed. It is clear, therefore, in my judgment that the examination of necessity and expediency should, as the consequences of the order are, be considered in the context of the detail of the footpath which is proposed, including details of its alignment, length and width.
28. Thirdly, in relation to the question of expediency and discretion (the second and third aspects of section 26(1)) important and determinative consequences will flow from consideration of the detail as opposed to assessment of the broad question of principle. For instance, as in this case, the issue of alternatives, an aspect of the question of expediency, can be determinative of whether the order should be confirmed and that determination will depend upon the detail of alignment or position of the footpath and its length. Again, in this case, the question of width was important to the impacts complained of by English Nature. Thus the details of alignment, length and width are clearly part and parcel, in my judgment, of the section 26(1) tests.
29. The question which then arises on this construction was whether the Inspector concluded that there was a need for a footpath of the position, length and width which he created on the evidence. Only if there was could it be concluded that the footpath was in the powers of the Act. The answer to that to my mind is clearly no. No-one had ever suggested that the footpath needed to have those dimensions. In paragraph 21 of the decision letter, the Inspector is clearly confirming the order such that it "would not preclude the later creation of bridleway rights over the route provided the test in section 26 of the 1980 Act were met". He was therefore confirming the order with the dimensions of the proposed bridleway so as not to preclude its subsequent creation but it does not appear that he posed for himself the statutory test, namely are these dimensions needed for a footpath and do they pass the test of necessity, expediency and discretion. Had he done so, the obvious answer was that they were not and did not. They only arose in relation to the claimant's land because of the requirements for equestrian and cycle users.

Discretion

30. The defendant says that if this had been a point, it could and should have been raised earlier in the debate and that therefore as a matter of discretion relief should be refused since the claimant did not raise questions of the dimensions over its land of the footpath when it had the opportunity to do so. In my view, this is a strong point because the claimant said in terms that they did not object to a footpath and did not raise any query in relation to the change of dimensions which they now say should have occurred reducing the footpath to a two metre width.
31. I have some sympathy for the Inspector but I am not persuaded that I ought to exercise my discretion to decline the relief for the following reasons. Firstly, the claimants were entitled to assume that this proposal would follow the form of the downgrading of order 115B and thus include the reduction in width to two metres to reflect the reduction in status from a bridleway to a footpath. Secondly, the Inspector ultimately had carriage of applying the appropriate statutory requirements. He had to be sure they were passed, whatever the parties were telling him were their concerns, and, for the reasons which I have given, he clearly did not do so. Thirdly, faced with what is in my judgment a clearly inappropriate application of the law and the creation of an order outwith the powers conferred by the Act, in my view I should be slow not to correct such an error. I therefore do not propose to exercise my discretion so as to refuse relief in this case.

The adequacy of the map

32. In the light of the conclusions I have already reached, it is not necessary to my decision to deal with this point but I do say a few words since I heard argument on it. I have to confess the responsibility for raising this issue. The concern which I raised related to the fact that there was no pictorial or plan description of the land affected between points G and H and that the description which I have cited contained in the order was one which was open to interpretation. Although Mr Coppel, on behalf of the defendant, drew attention to the datum point of the centre line on the plan as providing an anchor for that description, the difficulty with that suggestion is, as Mr Laurence points out on behalf of the claimant, that it leads to a different parcel of land being defined from the one which was relied upon by Hampshire County Council to produce the same design of the crossing.
33. For the reasons which I have given above related to the consequences of the order, to my mind it is critical that there is precision about the land affected and that is clearly reflected in the provisions of the legislation. In this case, we have a slightly unusual situation. However, in my judgment the Inspector was correct in his 2006 formulation of the modifications of the order to include as a subsidiary plan the larger scale plan produced by Hampshire County Council as an attachment to his proposed order. Without it, the order lacked the necessary degree of precision to be lawful. Whilst Mr Laurence drew my attention to law relating to conveyancing plans, in my judgment we are not dealing with a dispute between two parties when one or other must own some finite area of land, the subject of contracts between them. We are dealing here with the creation and maintenance of public rights where at the time they are created it is vital they are precisely and accurately defined, not just in the interests of the affected landowner but also in the interests of the public at large, who wish to exercise the benefit of these rights.

Relief

34. It will be clear from the law that I have set out above that I only have power to quash and it is well-known that that is a blunt instrument. I have only been asked by Mr Laurence on behalf of the claimant to quash the footpath insofar as it affects the claimant's land, that is to say from points E to F and from points G to H. A form of excision of words from the order has been provided which satisfies me, and Mr Coppel on behalf of the defendant, that this is accomplished without having to write in any new text which would not be permitted by the legislative framework. Whilst that leaves an inaccessible length of footpath between F and G, about which no complaint is made by any party to these proceedings, and that might be thought to be an absurd outcome, I am reassured by the public confirmation given by Mr Laurence on behalf of his clients that they are willing by agreement to create a two metre wide footpath in between E and F and G and H. Thus, the outcome of these proceedings need not be as bleak as might appear on their face and it now lies in the hands of Hampshire County Council to take up the claimant's offer and achieve what the Inspector correctly described as "satisfaction of the undisputed need for a pedestrian link".
35. MR LAURENCE: Thank you, my Lord.
36. I noted during your Lordship's judgment one or two passages which I would ideally have liked to be able to have in front of me a draft judgment in order to consider as to whether your Lordship had inadvertently slightly misstated the statute. For example, I think you said that the making of the order has effect to convey the fee simple to the authority, whereas of course it is the confirmation of the order that has that effect. Your Lordship, I think, did not read subsection (6), which engages the relevant schedule.
37. There was one other small point that I will just mention, in case your Lordship finds it helpful. I think it is right that, when your Lordship mentioned the -- yes, when your Lordship mentioned the second inquiry having been held, you referred to it as a reopening of the inquiry, whereas strictly speaking, as your Lordship of course has drawn attention to in the later legislative provisions, it is a freestanding independent inquiry, the justification for which is found in, I think, paragraph 2, subparagraph (3) of schedule 6. Small points like that, my Lord, I hope we will be able to scrutinise --
38. THE DEPUTY: Well, what happens now is that my draft -- the draft arrives from the shorthand writers and I am more than happy -- I do not know whether this is a permissible direction, but I am more than happy for that draft to be circulated to all of you and, if there are minor editorial corrections of that kind which you will have been able to undertake had I handed judgment down, we can do that. But obviously that needs to be done within a reasonable timeframe, because I have to then return it.
39. MR LAURENCE: Of course. My Lord, we will deal with it within a matter of half a day from the time we see the draft.
40. THE DEPUTY: Mr Coppel is delighted that you are making that offer on his behalf, I am sure, but no, I am sure an arrangement can be made along those lines.
41. MR LAURENCE: I understand that some such procedure is adopted in these cases anyway, my Lord.
42. My Lord, I think it remains only to ask your Lordship to make an order that the costs of the claimant --
43. THE DEPUTY: Well, I think, there are a number of points which are going to arise. Can we just start generally. We left the proceedings last week with, had I been minded to make the decision I have, a form of the correction of the order, which, as I understood it at the time, was agreed. Now, it seems to me therefore you are going to have to draw up the order, Mr Laurence, and include that within the form of the order and that is effectively the relief which I am granting, namely the quashing, so that it reads -- and then we have the form that we agreed last week. So that is the first bit before we get to costs. Are we all agreed about that?
44. MR LAURENCE: That is right.
45. THE DEPUTY: I am looking forward to you drawing up that order and agreeing it with Mr Coppel so that that can then be lodged with the court.
46. MR LAURENCE: And we will ensure that that is done while your Lordship is sitting this week, so that it can be due --
47. THE DEPUTY: I am not here Friday, so just bear that in mind.
48. MR LAURENCE: I will. My Lord, in relation to costs, of course, there was a possible problem that I would face if your Lordship had founded his decision on one or other of the matters which were the subject of the amendment, but in the event your Lordship's judgment makes it entirely clear that we did not need the amendment, either in relation to expediency or in relation to the description of the area of land in order to achieve the result, although both the points that have been argued under those two amendments have been upheld and so -- your Lordship is not demurring from my suggestion that --
49. THE DEPUTY: Well, I -- Mr Coppel, do have you anything to say about costs?
50. MR COPPEL: Well, my Lord, I note your Lordship's observation in relation to discretion, so far as relief is concerned, and that bleeds into the issue of costs, however in fact they ought to be awarded. My Lord, I am conscious of the exchange which did take place between the Inspector and the Inspectorate and the claimants in relation to the point relating to the footpath and this not having been alerted to the Inspectorate. We can only speculate what difference it might have made had the issue been raised fairly and squarely and plainly I have taken into account your Lordship's observations as to why it is that you have found, for example, in relation to the difference between order 116 and order 115 it ought to have been a live issue. But the fact of the matter remains, that there were opportunities which had been squarely raised by the Inspector to the claimants that might have obviated the need for these proceedings and that ought to infect the judgment so far as costs is concerned.
51. THE DEPUTY: Anything you would like to say?
52. MR LAURENCE: Well, with respect, that is not right. All the Secretary of State had to do was to say to us months ago, a week -- that he or she could see that they would have an argument on discretion, even if they lost on the rest. On reflection they had decided either that they would submit to judgment but suggesting some kind of order which would result in our not getting all our costs or some such exchange could have occurred, I suppose, or they might have said, which in practice and in effect they did do, we will take our chance on persuading the judge when the time comes on discretion and they have failed to do that and I would respectfully submit that your Lordship should be guided by the normal rule, that the successful party should have its costs and that -- all I was going to add to that is that the usual notice has been given of the existence of conditional fee agreements in this case and --
53. THE DEPUTY: Let us not worry about that. I know nothing about that at the moment.
54. Mr Coppel, it was a brave and ingenious attempt but I am not persuaded that the normal order ought not to be made in this case. It seems to me that in relation to the principal issue, that of statutory construction, on which the Secretary of State fought the case, you did not succeed, nor in the event did you persuade me as to discretion, although it is right that, as I observed in the judgment, it seemed to me it was a strong point but not ultimately a successful one and therefore costs must follow the event. Now, as to --
55. MR LAURENCE: As to assessment and so on, I am not going to ask your Lordship to do it today.
56. THE DEPUTY: Well, it would not be appropriate, would it? Given that the case went on for two days, I need to order a detailed assessment. Now, what I do not know is whether or not the issue of conditional fee agreements raises any issue, because, I will be candid, in this jurisdiction I have never dealt with --
57. MR LAURENCE: My Lord, it does not, for this reason, that we have given the relevant notice of the existence of these agreements to the Secretary of State. Your Lordship is not concerned with that in the absence --
58. THE DEPUTY: That is a matter that then is dealt with at the detailed assessment, as in other jurisdictions.
59. MR LAURENCE: That is correct and, in the cost practice direction, there is a provision to this effect, this is section 9.1 on page 1171 in volume 1:

"Under an order for payment of "costs", the costs payable will include an additional liability incurred under a funding arrangement."

So I read that as meaning that there need not be any express provision in the order for costs for payment of any fee payable under a conditional fee agreement.

60. THE DEPUTY: It all is part and parcel of a detailed assessment.
61. MR LAURENCE: The Civil Procedure Rules and Practice Direction have by themselves made provision for an order for costs automatically to carry the right to such additional payment under a CFA as the costs judge decides is appropriate on assessment. However, when I submit the order to your Lordship and to my learned friend for agreement, I will just ex abundante cautela make mention of the existence of these agreements --
62. THE DEPUTY: I wish I understood what you just said, Mr Laurence. It is my failings as a classics scholar to get beyond latin O'level, I think.
63. MR LAURENCE: I am sorry, my Lord. Just from an abundance of caution, I will include in the order the reference to the CFA, because I have not myself until recently encountered this particular provision and do not have enough experience either of knowing whether one needs to --
64. THE DEPUTY: I mean, the only issue which might have a bearing but must go to detailed assessment, I assume, is the success fee ratio, but if you say that is not a matter for me, then it is not a matter for me and we --
65. MR LAURENCE: It could be a matter for you. There is power to invite your Lordship to enter into the fray to that extent, that is to say to the extent of determining whether the percentage uplifts for which the agreements make provision are reasonable and so on and so forth, but the view we take is that it is best all left to the costs judge and --
66. THE DEPUTY: I share that view.
67. MR LAURENCE: And we anticipated your Lordship might share that view.
68. THE DEPUTY: Yes, good. So that disposes of all matters.
69. MR COPPEL: With one exception.
70. THE DEPUTY: With one exception, of course.
71. MR COPPEL: My Lord, permission to appeal. We ask for it. Your Lordship has decided an important issue and that is whether the need spoken to in section 26(1) of the Highways Act is a need for a footpath byway or restricted -- bridleway or restricted byway of a particular length, width and alignment or whether it is enough, so far as need is concerned, for there to be simply a need for a footpath byway or bridleway in the area of the local authority. Now, my Lord, that actually is a matter of considerable importance for local authorities that are charged with administering this legislation and, of course, for inspectors who are appointed to decide --
72. THE DEPUTY: Well, what is the test that I am supposed to be applying in relation to your application, Mr Coppel?
73. MR COPPEL: Well, there are two elements to it, or two possible ways of going through. First of all, I have good prospects of success. Well, that one usually falls on deaf ears, for understandable reasons, and the second is that it raises a broader issue -- I will get the actual words and the page number in the White Book -- a broader issue which deserves the attention of the Court of Appeal and, I make no bones about it, I apply under both limbs, because we say --
74. THE DEPUTY: You say I have it wrong.
75. MR COPPEL: -- with respect that your Lordship has treated indifferently the requirements of expediency and the requirements of need set out in section 26 and we say that is an important matter. It is, my Lord, CPR 52.3(6) at page 1392 of the --
76. THE DEPUTY: Page...?
77. MR COPPEL: 1392, about a quarter of the way from the bottom:

"Permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success..."

78. THE DEPUTY: This appears to be a 2007.
79. MR COPPEL: My Lord, can I hand up mine? (handed)
80. THE DEPUTY: Sorry about that. Yes.
81. MR COPPEL: About a quarter of the way up from the bottom, subrule (6).
82. THE DEPUTY: Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard.
83. MR COPPEL: And the compelling reason identified, my Lord, is importance in the administration of this provision. The task, as your Lordship will have appreciated from just this dispute alone, to say nothing of experience, the task for local authorities is bedeviled already by many legal difficulties in deciding what it is they must do and the issue of need and understanding precisely what they have to do in relation to it, as opposed to expediency, is a matter which has to be very carefully kept in mind and we say that that engages both limbs, it is an important point and, with all due respect, we do say we have a real prospect of success before the Court of Appeal.
84. THE DEPUTY: Anything you would like to say?
85. MR LAURENCE: My Lord, there is no real prospect of satisfying your Lordship that there is real prospect of success. That my learned friend should raise with the Court of Appeal if he wants to say -- the real point here is whether there is a compelling need for the --
86. THE DEPUTY: Compelling reason.
87. MR LAURENCE: Some other compelling reason why the appeal should be heard. I mean, the way you have to test that, in my respectful submission, is to see whether my learned friend is right in urging on your Lordship that your Lordship's judgment has some potentially very serious practical consequence. The only practical consequence your Lordship's judgment is going to have is that authorities who are contemplating making a creation order under section 26 will be subjected, as a result of a High Court decision, to the salutary discipline of considering the question of need in the context of the very order which they are considering making and whose terms they are going to have to consider in any event at some point and so you have a situation where an authority in general terms is satisfied that there may be a case for the making of a new footpath order in a certain position. Your Lordship has used the word alignment, the regulations in fact refer to the word "position" and by position I mean they are considering making a new footpath order in a position which runs along, let us assume, an existing track somewhere in the countryside. In order to give focus to their consideration for the need for that new footpath, and since they are in any event going to have to provide an order which defines the position of that proposed new footpath and its width and length, if they are to make it, all your Lordship's judgment has indicated is that that needs to be done as part and parcel of the process and from the beginning. It is not going to create any problems because they have their map, they have their OS base there readily to hand, every authority has, but what they will need to do is to ask themselves, well, where exactly is it going to go if we make the order, how wide is it going to be and how long is it going to be and let us show it in draft on a map. I have no doubt that is what in practice they do. So, far from there being a compelling reason for the appeal to be heard, there is no compelling reason based on practicality and in any event, my Lord, at some stage the test has to be passed, even if it is not at the need stage -- your Lordship has held that it does need to be passed at the need stage -- it has to be passed at the expediency stage anyway and, on appeal, the Court of Appeal is simply going to be saying to itself, I expect, well, even if Mr Coppel is right about need, leave to amend was given to plead expediency and he cannot say that at that stage that the plan does not have to be drawn up. So I would invite your Lordship to follow the normal course and to leave it to the Court of Appeal to decide whether leave be given in this case.
88. MR COPPEL: My Lord, I am itching to reply. Just a few -- one small matter. The identification of the particular position, width and length of a path, were your Lordship's approach to be right -- well, the identification is an iterative process and, if your Lordship is right, with each iteration there will be a need -- well, there will be a necessity to consider need and my learned friend says, oh well, you have to do it anyway in relation to expediency. The point is that, once the need has been identified, those iterations are largely directed to finding the most -- what is most expedient. But if instead of you have to go to base 1, reconsider the need at each stage, it does become a very much more involved task and the present saga, if I can put it that way, neatly illustrates just how much extra will be involved, because at each stage that these particular paths got altered, there would be a necessity to go back to stage 1 and consider the need for that particular path, as opposed to the expediency, which is what the iterative process is actually directed to.
89. THE DEPUTY: Well, Mr Coppel rightly forecasts that I am not persuaded that there is any prospect of success. Nor am I persuaded that the decision I have reached on the point of statutory construction gives rise to significant, or such significant, practical constraints or concerns such that that is in itself a compelling reason why the matter should proceed to the Court of Appeal and so I am going to refuse your application for permission.
90. MR COPPEL: My Lord, one final matter, and that is could I ask that the appeal period, or the period within which to make an appeal, start running from the time that we get the final approved judgment from your Lordship?
91. THE DEPUTY: Yes, of course.
92. MR COPPEL: I am grateful.
93. THE DEPUTY: That makes perfect sense.
94. MR LAURENCE: I was about to suggest you should reduce the period, my Lord, but having heard my learned friend --
95. THE DEPUTY: I think you have done quite well enough already, Mr Laurence.
96. MR LAURENCE: My Lord, that was genuinely a jest.
97. THE DEPUTY: Just let me complete this form. (pause)
98. Good. Thank you both very much indeed. Thank you for your attendance this morning.