FPS/Z1585/4/23

FPS/Z1585/4/23
15 December 2015
Mr Peter Millman
S.119 diversion order, interest of landowner, effect on enjoyment by the public.

Mr Millman sets out the test he must apply to the order before deciding whether or not to confirm it: [1] “… that it is expedient in the interests of the owner, or of the public, or both, that the path should be diverted. The further tests for confirmation are set out in the remainder of s119(6) and in s.119(6A) of the 1980 Act. The principal issues are, first, whether the diverted footpath would be substantially less convenient to the public than the present one, and second, what effect the proposed diversion would have on public enjoyment of the path as a whole.”

On the landowner’s interest, Mr Millman notes, [3] “The owner wishes to sell the property and his buyer wishes to remove the footpath from across the middle of the field to around the boundary. The landowner’s agent states that an offer has been made for the property and accepted subject to the diversion of the footpath, and adds: It is considered expedient that the line of the footpath should be diverted to prevent walkers passing directly through the garden land, to the clear benefit of both safety and privacy for the prospective purchaser.” And at [4], “It would clearly be expedient in the current landowner’s interests to have the footpath diverted if it makes it easier to sell the property. I can give very little weight, if any, to the advantages said to accrue to the prospective purchaser. S.119 of the 1980 Act refers to the interests of the owner, lessee or occupier of the land, not to those of a prospective buyer.”

Mr Millman finds that the proposed new path would not be substantially less convenient to the public, and looks next at the effect on public enjoyment. He looks at the various witness submissions and finds, [19] “I conclude that the diversion of footpath 13 would have an adverse effect on its enjoyment by some members of the public because it would be longer, the sense of openness would be lost, views would be lost and the path would probably be damper. There would be no positive effects on public enjoyment.” The Inspector then directs himself, [20] “I need to balance the interests of the landowner against those of the public to determine whether it would be expedient to confirm the order”, and proceeds to this conclusion”

[21] “Diversion of the footpath would enable the current landowner to sell his property to the person who has offered to buy. This would, in my view, be a one-off benefit to the landowner; once his property is sold he will benefit no longer. I cannot give significant weight to the unproven benefits to the privacy and safety of a future owner. The adverse effect on the enjoyment of some members of the public, even if not very great, would last for the foreseeable future; it would be felt each time they used the path. Cumulatively, I conclude, it would outweigh the benefit to the landowner, and I therefore further conclude that it would not be expedient to confirm the order.”