Manchester City Council, R (on the application of) v Secretary of State for Environment Food and Rural Affairs [2007] EWHC 3167 (Admin)

Case No CO/2452/2006

[2007] EWHC 3167 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 14th December 2007

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE SULLIVAN

Between

THE QUEEN ON THE APPLICATION OF MANCHESTER CITY COUNCILClaimant

Between

THE SECRETARY OF STATE FOR ENVIRONMENT FOOD AND RURAL AFFAIRSDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr J Neill (instructed by Manchester City Council Solicitors) appeared for Claimant

Mr T Burley (instructed by DEFRA Legal Department) appeared for Defendant

Miss R Crail (instructed by Zermansky Solicitors) appeared

as an Interested Party

J U D G M E N T

INTRODUCTION

[1]In this application for judicial review the claimant seeks an order quashing a decision of an inspector appointed by the defendant not to confirm the City of Manchester (Footpaths at Wallace Avenue, Rusholme, Manchester)(Special Extinguishment Order) 2004. ("The Order") was made under section 118B of the Highways Act 1980, ("the 1980 Act"). The inspector's decision and his reasons are contained in an Order Decision dated 18th January 2006 ("the Decision Letter"). Section 118B was introduced into the 1980 Act by the Countryside and Rights of Way Act 2000 ("the 2000 Act"). DEFRA Circular 1/2003 ("the Circular") explained that the new powers to close rights of way were conferred on highway authorities for the purpose of crime prevention. Part 3 of the Circular explained the context of the new provisions:

"3.1 In general, rights of way do not cause or facilitate crime. We do not intend to use the fear of crime as a means of restricting ways which are important to the majority of law-abiding people who use them. The provisions are focused on and limited to combating crime that is expressly facilitated by the use of certain rights of way, specifically in areas where ways can generate high levels of opportunistic crime. Particular problems have been identified and raised by MPs, councillors and members of the public in relation to some local authority housing estates and the networks of the alleys between homes. There are many locations where patterns of use have changed, and the alleys are no longer used regularly -- a factor which would make a proposed closure less controversial... "3.4 The Government considers that these powers will be particularly important in enabling the closure or diversion of those back (or side) alleys, which are public rights of way, where they are demonstrably the source of crime in built-up areas, particularly housing estates. In practice, if a footpath is the only means of access to the rear of a terrace of properties, it may well be easier to demonstrate whether the way itself is facilitating persistent crime, than in an open rural setting, where there might be a number of means of access to premises. The rationale behind formulation of these powers was to assist in strictly urban areas, where the existence of rights of way was frustrating efforts to curb crime, but the clause was amended to recognise that there may be circumstances in which there should be the potential to apply the powers to other areas. However the Government envisages the powers will only be used in exceptional circumstances. The use of the designation order will ensure the powers can be specifically and properly targeted to those areas where real problems exist. "3.5 Because of the potential effect of the powers, assurances were given during the passage of these provisions through Parliament that the intention was for the closure and diversion orders to be used sparingly by local highway authorities, and not as a first response to tackling crime. There is a need to strike a balance by protecting communities from crime while avoiding unnecessary interference to the public rights of passage. These powers are not a means to enable unnecessary loss of historic rights of way. Local networks of off-road routes can provide people with an important means to make short journeys, away from busy traffic, and offer opportunities for exercise and informal recreation near to where they live. Highway authorities will need to consider how these networks can be improved when preparing their Rights of Way Improvement Plans."

[2]The relevant provisions in section 118B are as follows:

"(1) This section applies where it appears to a council -- "(a) That, as respects any relevant highway for which they are the highway authority and which is an area designated by the Secretary of State by order for the purposes of this section, the conditions in subsection (3) below are satisfied and it is expedient, for the purpose of preventing or reducing crime which would otherwise disrupt the life of the community, that the highway should be stopped up... "(2) In subsection (1) above "relevant highway" means -- "(a) Any footpath... "(3) The conditions referred to in subsection (1)(a) above are -- "(a) That premises adjoining or adjacent to the highway are affected by high levels of crime, and "(b) That the existence of the highway is facilitating the persistent commission of criminal offences. "(4) Where this section applies, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the highway. "(5) An order under subsection (4) above is in this Act referred to as a 'special extinguishment order'. "(6) Before making a special extinguishment order, the council shall consult the police authority for the area in which the highway lies. "(7) The Secretary of State shall not confirm a special extinguishment order made by virtue of subsection (1)(a) above, and a council shall not confirm such an order as an unopposed order, unless he or, as the case may be, they are satisfied that the conditions in subsection (3) above are satisfied, that the stopping up of the highway is expedient as mentioned in subsection (1)(a) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to -- "(a) Whether and, if so, to what extent the order is consistent with any strategy for the reduction of crime and disorder prepared under section 6 of the Crime and Disorder Act 1988, "(b) The availability of a reasonably convenient alternative route or, if no reasonably convenient alternative route is available, whether it would be reasonably practicable to divert the highway under section 119B below rather than stopping it up, and "(c) The effect which the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation contained section 28 above as applied by section 121(2) below."

[3]It will be seen that there are three stages to the process: The designation of the area by the Secretary of State, the making of the order by the highway authority and the confirmation of the order either by the highway authority, if there are no objections, or by the Secretary of State following a hearing or public inquiry, if there are objections. The Circular provides guidance as to the designation process. "4.3 The process of designating areas is concerned with establishing whether an area is sufficiently vulnerable to crime arising from the presence or rights of way to justify such a designation. Although all submissions for designation will be considered, the Government generally believes a primary consideration must be that highway authorities are able to demonstrate (in any submission to have an area included in a designation order) that:

"a) There are rights of way in the area in question, that are demonstrable causes of a persistent crime problem; and "b) The realistic alternative options to tackle the causes of problems have been examined, prior to the decision to make a submission to the Secretary of State under the terms of this guidance. "4.4 A highway authority should only consider an area for inclusion in a designation order if the given area has rights of way where the conditions set out in the legislation for the exercise of the powers might potentially be met. Accordingly the procedure set out below, for the formulation of a submission, is based broadly on the conditions in the primary legislation for special extinguishment/diversion orders. It should be noted this basis of reference does not mean that inclusion of an area in the designation order will negate any need to consider the requirements of s118B/119B for the purposes of making a specific special extinguishment/diversion order"

(emphasis in original).

[4]Details of the procedure and the matters to be considered are contained in part 5 of the Circular. Under the heading "Consultation", paragraph 5.6 states:

"It must be remembered that where a specific special extinguishment/diversion order is made under sections 118B or 119B there will be full opportunity for detailed consideration and objections, which if unresolved, may result in a hearing or public inquiry. The legislation also provides for statutory consultation with the police authority for the area, and regard must be had to any crime and disorder strategy prepared for the area."

[5]In response to a submission from the claimant, the defendant made the Crime Prevention (Designation Areas) Order 2003 designating an area of Rusholme and Victoria Park in the city under section 118B(1)(a). The four footpaths, the subject of the Order, are within the designated area. Although there are four footpaths, two of them join together to form a continuous link between Norman Road to the south and Dickenson Road to the north ("the Path"). The Path runs through a residential area, largely along the rear boundaries of houses. Two much shorter paths provide links to Wallace Avenue, which runs parallel to the Path for about half its length. The alternative route proposed by the claimant ran from the south in an easterly direction along Norman Road, turned north into Hall Road, then turned west at the junction of Hall Road and Dickenson Road, along Dickenson Road. Norman Road, Hall Road and Dickenson Road all carry vehicular traffic. The Order was made on 7th December 2004. When it was submitted to the defendant for confirmation, there were 14 outstanding objections. The defendant therefore appointed an inspector, Mr Lowe, to hold an inquiry to decide whether the Order should be confirmed. The inspector held an inquiry from 6th-8th December 2005 and carried out his site visit on the last day of the inquiry. THE DECISION LETTER

[6]In paragraph 2 of the Decision Letter the inspector identified the main issues as follows:

"Section 118B of the Highways Act 1980 requires that, before confirming the Order, I must be satisfied that: "(a) The way concerned is a relevant highway; "(b) Premises adjoining or adjacent to the highway are affected by high levels of crime; "(c) The existence of the highway is facilitating the persistent commission of criminal offences; "(d) It is expedient for the purposes of preventing or reducing crime which would otherwise disrupt the life of the community that the highway should be stopped up. "

In addition, I must also be satisfied that it is expedient to confirm the Order having regard to all the circumstances, and in particular to:

"(i) Whether and, if so, to what extent the Order is consistent with any strategy for the reduction of crime and disorder under section 6 of the Crime and Disorder Act 1998; "(ii) The availability of a reasonably convenient alternative route or, if none exists, whether it would be reasonably practicable to divert the highway under section 119B rather than stopping it up; "(iii) The effect the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation."

[7]The claimant accepts that the inspector correctly directed himself to the relevant issues in that paragraph. Having set out the background, the inspector dealt in turn with each of the main issues that he identified under separate headings. There was no dispute that the four routes were relevant highways. Mr Phoenix, the Council's highways officer, told the inspector inter alia that Captain Tucker's survey of 1848 showed the route from Dickenson Road to Norman Road as a footpath. Under the heading "Whether premises adjoining or adjacent to the highways are affected by high levels of crime and whether the existence of the highways is facilitating the persistent commission of criminal offences" the inspector summarised the evidence of the witnesses called by the claimant. Thus, for example, PC Wright, the beat officer, stated, "Wallace Avenue and the surrounding streets have suffered more than any other areas of his beat regarding street crime, burglaries, drug dealing and various other theft-related crime" (10).

[8]Professor Murphy, the home watch co-ordinater "gave evidence of numerous offences, all facilitated by the Order routes, including numerous break-ins at 4 The Mews, robbery of a medical student in the alley, break-in and robbery at 10 Wallace Avenue, two attempted break-ins and an intruder at 22 Wallace Avenue, two break-ins at 90 Dickenson Road and evidence of drug dealing" (11).

[9]Lynn Harris "gave details of a burglary to her property with access from the alley and of stolen property thrown over the wall. She also reported that alleyways are used for drug dealing and taking" (13).

[10]In paragraph 18 the inspector recorded the claimant's submission, which included the contention that "by virtue of the seclusion of the alleyways... [they] provide a place for offences such as drug dealing and robbery."

[11]In paragraphs 19 and 20 the inspector said:

"19. None of the objectors disputed the crime incidents or that the footpaths were a significant means of gaining entry to the adjoining properties. "20. In my view the premises adjoining or adjacent to the footpaths are clearly affected by high levels of crime, particularly burglary, and the footpaths are facilitating the persistent commission of criminal offences."

[12]Under the heading "Whether it is expedient for the purposes of preventing or reducing crime which would otherwise disrupt the life of the community that the highways should be stopped up" the inspector concluded in paragraph 26:

"I am satisfied, on balance, that there would be sufficient benefits in preventing and reducing crime that disrupts the life of the community to make it expedient to close the footpaths."

[13]The inspector's decision turned on the final issue:

"Whether it is expedient to confirm the Order having regard to all the circumstances and in particular to: "(i) Whether and, if so, to what extent the Order is consistent with any strategy for the reduction of crime and disorder under section 6 of the Crime and Disorder Act 1998. "(ii) The availability of a reasonably convenient alternative route or, if none exists, whether it would be reasonably practicable to divert the highway rather than stopping it up. "(iii) The effect the extinguishment of the right of way would have as respects land served by the highway, account being taken of the provisions as to compensation."

[14]It is necessary to set out paragraphs 27-37 of the Decision Letter in order to understand the context for the inspector's conclusions in paragraphs 38-40:

"27. The Manchester Crime and Disorder Reduction Strategy 2005-2008 has as a priority the reduction of burglary. Alley-gating is one of a number of crime prevention measures, together with environmental improvements, fencing, lighting and improved property security, identified as possible solutions. "28. The Council has identified Hall Road as an alternative route. This runs parallel and east of the Order routes. The area around the Order routes are entirely developed as housing and streets and it would therefore not be practical to divert the footpaths to a new route. "29. The Council state that the use of the alternative route would involve travelling a further 175 metres, at the maximum. The existing footpath between Dickenson Road and Norman Road is 199 metres in length. The Council submit that the alternative is a safer route, wider and more convenient. No accidents involving pedestrians have been recorded on the alternative route in the last 10 years, except one on Dickenson Road, which would need to be walked in any event by users of the Order routes. "30. Vincent Walsh and John Merrill gave evidence that they find the proposed alternative route inconvenient as it involves walking along the footways of busy roads with the disadvantages of parked cars sometimes obstructing the footways. "31. No evidence was submitted to indicate any adverse effect of the proposed closure upon the land served by the footpaths. The Council stated that, in the event of the footpaths being closed and gated, keys would be distributed to the residents and the Council would maintain the alley, lighting and drains. "32. The Council conducted a user survey of the footpath between Dickenson Road and Norman Road on 17th January 2005 over some 2.5 hours at the times parents would take children to and from school. The weather conditions were heavy rain in the morning and light rain in the afternoon. Only one person was observed using the footpath on these occasions. A second survey was conducted on 8th February 2005 between 8.00 am and 4.30 pm when the weather conditions were dry and sunny. A total of 20 journeys were recorded, the majority being female students. "33. John Merrill gave evidence that he uses the footpath four times a day to take his children to school and sees others using the footpath for journeys to the school, dog walkers, students at Manchester Grammar School, students going to Owens Park residencies and people going to the shops in Fallowfield. He finds the footpath a 'daily delight' and with over 1,000 journeys over 15 months has not encountered any problems of anti-social behaviour or crime, except for instances of rubbish being dumped outside one of the properties. "34. Several written objections were made to the Order from users of the footpath seeking to retain the amenity of the route as a convenient alternative to footways alongside roads. A petition with some 74 signatures was submitted to the Council in opposition to the proposed closure of the footpath. "35 Gloria Gaffney, of Manchester Pedestrians Association, Donald Lee of the Open Spaces Society and other objectors to the Order, including the Ramblers' Association, submit that: "

The footpath from Dickenson Road to Norman Road is an historic footpath known as 'Dead Entry'. It is shown on the Ordnance Survey map of 1850 as part of a more extensive route from Rusholme Green to Fallowfield. The footpath is also shown on the edition of 1907, by which time most of the existing adjoining housing had been built. The 'History of Rusholme' by William Royle published in 1914 refers to 'Dead Entry' and details the events in the area dating back to the 9th century. "The Council has reached the wrong conclusions concerning the balance between crime prevention and the public interest. In particular they refer to the guidance given by DEFRA Circular 1/2003 'There is a need to strike a balance by protecting communities from crime while avoiding unnecessary interference to the public rights of passage. These powers are not a means to enable unnecessary loss of historic rights of way. Local networks of off-road routes can provide people with an important means to make short journeys, away from busy traffic, and offer opportunities for exercise and informal recreation near to where they live.' "The footpath provides a utility and recreational function. It is a safe route to school, used frequently by those who choose that route in preference to roadside walking. The proposed alternative route is twice the distance and is alongside roads, the part along Dickenson Road carrying heavy traffic. "The route should be retained and improved to form part of a network of urban traffic-free ways to promote healthy walking, and safe routes to schools. The Council should consider improvements to the footpath as part of the Rights of Way Improvement Plan. "36. The Council acknowledges the historical origins of the footpath but submits that as the footpath is now completely urban in character it has lost any significant historical features and context. "37. The Council submits that the life of the community is being seriously disrupted by the high levels of crime facilitated by the existence of the footpath. They submit that the benefits of the closure outweigh any limited adverse effect the closure would have upon the public and also outweigh any remaining marginal historical significance."

[15]The inspector's conclusions were as follows:

"38. Section 118B of the Highways Act 1980 establishes a number of specific tests, but also requires a more general test of expediency having regard to all the circumstances. I have already concluded that the way is a 'relevant highway', that the premises adjoining or adjacent to the footpaths are affected by high levels of crime, that the footpaths are facilitating the persistent commission of criminal offences and that it is expedient for the prevention or reduction of crime which would otherwise disrupt the life of the community to close the footpaths. "39. I am not satisfied, having regard to all the circumstances, that the benefits of closing the footpaths outweigh the benefits of retaining the public right of passage. The crime and disorder strategy recognises the closure of footpaths and their improvement as an alternative means of reducing crime. In my view the proposed alternative route, although reasonably convenient, is less attractive to users of the existing footpaths and closure would be detrimental to the amenity of some local residents. In striking a balance between protecting the residents of the properties adjoining and adjacent to the footpaths from crime and avoiding unnecessary interference to the public right of passage, I find that the footpaths do have a real purpose for significant numbers of local people who use them regularly. In my view the historical significance of the footpath from Dickenson Road to Norman Road is also of some weight in support of its retention. Whilst the level of crime facilitated by the existence of the footpaths is extensive, I find, on the balance of probability, that the advantages of closure are not sufficient to outweigh the disadvantages to the wider community were the Order to be confirmed. "40. Having regard to all these and all other matters raised at the inquiry and in the written representations, I conclude that the Order should not be confirmed."

THE CLAIMANT'S CHALLENGE

[16]On behalf of the claimant Mr Jones challenged the inspector's decision on six grounds. In the order in which they were presented in his oral submissions, they were:(1) The inspector applied the wrong test under section 118B(7) because he failed to give most or more or sufficient weight to the three factors listed in paragraphs (a)-(c) of subsection (7), and in the case of factor (c) failed to take it into account when carrying out the balancing exercise.

(2) The inspector failed to consider the impact on the personal safety of users of the Path when he compared its attractiveness with that of the alternative route.

(3) When concluding that the alternative route was less attractive than the Path the inspector failed to make relevant findings of fact.

(4) The inspector's reasoning in paragraph 39 of the Decision Letter was inadequate and unintelligible.

(5) The inspector erred in law by taking account of the petition referred to in paragraph 34 of the Decision Letter.

(6) The inspector misdirected himself as the claimant's case concerning the historical significance of the Path. SUBMISSIONS AND CONCLUSIONS

[17]I can deal with grounds (5) and (6) quite shortly. In support of his submissions that the inspector was not entitled to place any weight on the petition, Mr Jones relied on the judgment of Hobhouse LJ R v Secretary of State for the Home Department ex p Venables [1997]1 All ER 327, 367. The Court of Appeals's decision was subsequently upheld by the House of Lords. While the observations of Hobhouse LJ were entirely apposite in respect of the Home Secretary's power, which he retained at that time, to increase the tariff of the two 10-year-old boys who had murdered Jamie Bulger, they are of no assistance to the claimant in the wholly different context of an inquiry into an order under section 118B. While recent legislation has given the victims of crime a voice in the sentencing process, letters and petitions from members of the public have no role to play in that process. Since an order under section 118B will be proposing the stopping up of a highway over which all members of the public have a right of passage, their interest in the process is recognised in the procedures which make provision for a hearing or a public inquiry if there are objections to the closure. Some members of the public will have a greater degree of interest than others: for example, those who live close to the footpath or who use it more frequently. As a matter of common sense, all other things being equal, it is likely that more weight will be given to the evidence of those members of the public who take the trouble to appear and give evidence than to the evidence of those who have merely written letters of objection. And more weight is likely to given to individual letters of objection than to the number of signatures on a petition. However, the weight to be given to oral or written evidence or to a petition is entirely a matter for the inspector conducting the inquiry. Some letters or petitions may be highly persuasive, some may not. In the present case the inspector summarised the evidence of all those who gave oral evidence. The accuracy of the inspector's summaries (subject to ground 6 below) has not been criticised by the claimant. In paragraph 34 the inspector merely recorded, entirely accurately, that there had been several written objections "from users of the footpath" and that there had been a petition. There is nothing in the Decision Letter to suggest that the inspector wrongly believed that all the signatories to the petition were local residents. From the addresses on the petition it was clear that they were not, nor is there anything to suggest, that, unlike the letter writers, the inspector wrongly believed that all the signatories of the petition were users of the footpath.

[18]In brief, there is nothing to suggest that the inspector attached any particular, much less undue, weight to the petition. Although he mentioned its existence, it is clear that he was persuaded by those who gave oral evidence objecting to the closure (see below).

[19]Under ground (6) (above) Mr Jones submitted that the inspector wrongly summarised the claimant's case as to the historical significance of the footpath in paragraph 36 of the Decision Letter. He submitted that the claimant's case was not merely that the Path now had an urban character, but also "that the alleyway had no links with the original historical path." In my judgment there is no force whatsoever in this criticism of the Decision Letter. It was common ground between the claimant and the objectors that the route of the Path was shown as a footpath on the 1848 survey (see paragraph 6).

[20]The objectors' argument is set out in paragraph 35 of the Decision Letter. The objectors did not suggest that the "historic footpath known as 'Dead Entry'" between Dickenson Road and Norman Road continued on its original alignment either to the north or to the south of those roads. It was common ground that to the north and to the south the ancient route had been lost. Against that background, Mr Phoenix argued in his Proof of Evidence that the Path had "no obvious links with the original path."

[21]In these circumstances, paragraph 34 of the Decision Letter is a fair and accurate paraphrase of the claimant's case. The footpath was urban in character and had "lost any significant historical features and context" (my emphasis); that is, as all the parties recognised, the ancient route had been lost to the north and south of Dickenson Road and Norman Road, respectively.

[22]In these circumstances, the inspector was entitled to conclude in paragraph 39 that the historical significance of the footpath from Dickenson Road to Norman Road, was "also of some weight in support of its retention."

[23]Before turning to the principal grounds of challenge ((1) and (4)), it is convenient to deal with ground (2) and that part of ground (1) in which it is contended that the inspector failed to take account of the factor in paragraph (c) of subsection 118B(7) when striking the balance in paragraph 39 of his conclusions. Mr Jones submitted that although the inspector had taken the issue of personal safety into account when considering the question whether premises adjoining or adjacent to the highways were affected by high levels of crime and whether the existence of the highways is facilitating the persistent commission of criminal offences, he had failed to address that issue when reaching his conclusions in paragraph 39 of the Decision Letter. Similarly, although the inspector had noted in paragraph 31 that: "No evidence was submitted to indicate any adverse effect of the proposed closure upon the land served by the footpaths. The Council stated that, in the event of the footpaths being closed and gated, keys would be distributed to the residents and the Council would maintain the alley, lighting and drains" he had not reflected that conclusion in paragraph 39.

[24]I will deal with the reasons challenge (grounds (3) and (4) below). It is well established that Decision Letters of this kind must be read as a whole and in a common sense rather than a legalistic manner. Having referred to an issue once in a Decision Letter, an inspector is not required to repeat the point over and over again. If it is accepted, as the claimant does accept, that the inspector did consider the issue of personal safety for users of the Path in his summaries of the witnesses' evidence in paragraphs 9-19 of the Decision Letter, and in reaching his conclusion in paragraph 20 of the Decision Letter, it is fanciful to suppose that the inspector would then have ignored or overlooked this factor when reaching his conclusions at the end of the Decision Letter. Similar observations apply in respect of paragraph 31 of the Decision Letter. The issue raised in paragraph (c), in subsection (7), did not require further discussion in the Decision Letter because it was not a matter that was in dispute between the parties. Of the three matters referred to in paragraphs (a)-(c) of subsection (7), the claimant and the objectors were at odds to as to the relative attractiveness of the Path, and the alternative route, and in respect of the strategy as to the alternatives of closure and improvement respectively. The submission that the inspector failed to take into account the evidence about personal safety when considering the relative attractiveness of the Path and the alternative route in paragraph 39 is made the more difficult by the fact that the inspector effectively summarised all of his earlier conclusions in relation to the other factors which he had to consider under section 118B in paragraph 38 of the Decision Letter. Thus, he recognised that the footpaths "are affected by high levels of crime". For these reasons, I reject grounds (2), (5) and (6) and turn to the principal ground advanced by Mr Jones, ground (1).

[25]Mr Jones drew attention to the wording of subsection (7), that the inspector had to consider whether it was "expedientto confirm the order having regard to all the circumstances, and in particular to" (my emphasis) the factors identified in paragraphs (a)-(c). He submitted that the use of the wording "in particular" meant that Parliament intended that the decision taker should place most, or at least an enhanced weight, on those three factors. Since the inspector had concluded that the proposed alterative route was reasonably convenient, that factor, and the factor in paragraph (c) above, should have been given, and be seen in the inspector's reasoning to have been given, greater weight than the other factors.

[26]Mr Jones relied for this submission on the decision of the House of Lords in the R v The City of Westminster Housing Benefit Review Board ex p Mehanne,

[2001] UKHL 11

[2001] 1 WLR 539

. In that case the claimant had applied for judicial review of the Board's decision to reduce his eligible rate for the purpose of calculating his housing benefit. Under the relevant regulation, the board was required to consider two questions:(a) whether the claimant occupied a dwelling that was larger than reasonably required for him; or

(b) whether the rent payable for his dwelling was unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation. "... and, where it appears to the authority that the dwelling is larger than is reasonably required or that the rent is unreasonably high, the authority shall, subject to paragraphs (3)-(4), treat the claimant's eligible rent as reduced by such amount as it considers appropriate having regard in particular to the cost of suitable alternative accommodation elsewhere and the claimant's maximum housing benefit shall be calculated by reference to the... eligible rent as so reduced."

[27]In paragraph 1 of his speech, Lord Bingham set out the question before the House:

"The question for decision by the House may be expressed in this way: Where it appears to a local authority (or a review board) that the rent payable by a claimant for housing benefit for a dwelling which he occupies is unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere, and the authority (or the review board) is required to treat the claimant's eligible rent as reduced by such amount as it considers appropriate, may the authority (or review board) take account of the claimant's personal circumstances (so far as relevant to his housing situation) when considering the amount by which it is appropriate to treat his eligible rent as reduced?"

[28]At first instance, the judge gave a negative answer to that question. The Court of Appeal gave an affirmative answer. The House of Lords upheld the Court of Appeal's decision. In paragraph 13 of his speech Lord Bingham said this:

"In my opinion the argument advanced on behalf of Mr Mehanne is correct, for essentially the reasons given by Mummery LJ in his judgment [2000]1 WLR 16, 24... "(2) The use of the expression 'in particular' does not limit the range of circumstances to be considered in determining the amount of reduction in the eligible rent or exclude all consideration of factors other than the factor particularly identified (ie the cost of suitable alternative accommodation). That factor is singled out for special mention and is thereby given the status of a mandatory consideration which carries the most weight in making a decision on the amount of any reduction in the eligible rent." (My emphasis). "(3) Other factors may [also] be taken into account in determining the amount of the reduction, so long as they are reasonably relevant to that decision. It is for the decision-making body to decide how much importance to attach, or how much weight to give, to each of the other factors."

[29]The claimant relies upon the words underlined at the end of subparagraph (13)(2) of Bingham LJ's speech. The claimant's approach illustrates the dangers of treating part of a sentence in a judgment as though it was an enactment of general application rather than a response to a particular legal and factual matrix. Two points can be made in respect of the proposition relied upon by the claimant. Firstly, it was not a necessary part of the judgment of either the Court of Appeal or the House of Lords. The question before both the Court of Appeal and the House of Lords was not what weight should be given to the factor singled out for particular mention, but whether the fact that only one factor was singled out meant that no other factors could be considered. Had the Court of Appeal or House of Lords thought that the particular factor had to be given "most weight" in the sense of outweighing all other factors then there would have been no point in remitting the matter to the board for redetermination because the outcome would have been a foregone conclusion.

[30]Secondly, I accept the submission of Mr Buley for the defendant, and Miss Crail for the third interested party, who represented the Rambler's Association at the inquiry, that the statutory language and context is very different. The claimant's case ignores the differences between the structure of the regulation in issue in Mehanne, which required the board to answer two questions, and if it answered those questions in a certain way, then to decide on the appropriate reduction in the eligible rent; and subsection (7), which deliberately confers a very broad discretion on the decision taker when deciding whether an order made under section 118B should be confirmed. The subsection is couched in the negative "shall not confirm unless" form rather than the positive "shall confirm if satisfied that" form. It expressly recognises that even though an inspector has been satisfied that the conditions for making the order set out in subsections (1)(a) and (3) have been satisfied, i.e. that it is expedient to make the order looking at the matter from the point of view of crime prevention; he may nevertheless decide that it is not expedient to confirm the order, having regard to wider considerations. Unlike the regulation in issue in Mehanne, which did not preclude the board from taking other factors into account, subsection (7) positively requires the decision taker to have regard to all of the circumstances.

[31]In this context the words "and in particular" require the decision taker to have regard to the three factors listed in subparagraphs (a)-(c), but they do not go further and require the decision taker to give those factors most or some form of enhanced weight. As a matter of common sense an inspector may well choose to give considerable weight to the availability or non-availability of a reasonably convenient alternative route. But whether he does so in any particular case is a matter for his judgment having heard the evidence and seen the site. In the context of the Town and Country Planning Code, Hoffmann LJ said in Tesco Stores Limited v Secretary of State for the Environment[1995]1 WLR 759, page 780:

"The law has always made a clear distinction between the question of whether something is of material consideration, and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided the planning authority has regard to all material considerations,it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law requires something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process."

[32]That reflects the underlying principle that the weight to be given to the various factors in issue in a planning or a highway inquiry, provided those factors are legally relevant, is entirely a matter for the inspector's expert judgment. The use of the words "in particular" in the context of a subsection which is expressly conferring a very broad discretion on the decision taker to decide whether confirmation of an order is "expedient", and is expressly enjoining him when doing so to have regard to all material circumstances, was not intended to displace that underlying principle. As Mr Buley pointed out, the nature of the factors listed in subparagraphs (a)-(c) would make it extremely difficult, if not impossible, to see how in practice it would be possible to put the claimant's submissions into effect and give those factors "most or some form of enhanced weight". Thus, an order under section 118B may be a consistent with the strategy for the reduction of crime and disorder to a greater or a lesser extent. An alternative route may be reasonably convenient but only just so, or it may be far more convenient than the path which is proposed to be stopped up. The effects of closing the Path may have a beneficial or a detrimental effect on the land served by the Path. For these reasons I do not accept ground (1).

[33]For the sake of completeness, I should mention that Mr Jones referred to the steps that were necessary in order to obtain designation of an area. He emphasised that the number of "hoops" that the authority had to go through before submitting an order for confirmation was very considerable. However, it is clear from the extracts from Circular 1/2003, which I have set out above, that Parliament intended that the inclusion of an area in a designation order would not negate the need to consider in detail the requirements of section 118B when it came to the stage of making a specific special extinguishment order (see paragraphs 4(4) and 5(6) of the Circular set out above).

[34]I turn to grounds (3) and (4), which it is convenient to deal with together. Under ground (3) Mr Jones submitted that the inspector had failed to make findings of fact in respect of issues where there were disputes between those who supported the Order and those who objected to the Order, namely:(a) The existence and level of rubbish and litter

(b) The existence and level of graffiti

(d) The level and frequency of use

(e) The existence of any activity that is threatening or illegal

(f) The existence of fear for their safety by users of the alleyway

(g) Whether the alleyway was convenient for prams, buggies et cetera."

[35]In support of that submission he referred to the judgment of Schiemann J (as he then was) in R v the Immigration Tribunal ex p Amin, [1992] Imm AR 367 where at page 374 Schiemann J said:

"In my judgment adjudicators should indicate with some clarity in their decisions: (1) what evidence they accept; (2) what evidence they reject; (3) whether there is any evidence as to which they cannot make up their minds whether or not they accept it; (4) what, if any, evidence they regard as irrelevant."

[36]Caution should be exercised when attempting to read across from decisions in a very different jurisdiction, particularly since the parties were agreed that the most helpful authority on the subject of the adequacy of reasons in the more analogous planning context was the more recent decision in the House of Lords in South Buckinghamshire District Council v Porter, (no 2)

[2004] UKHL 33

[2004]1 WLR 1953. Although Lord Brown's speech was concerned with decisions of planning inspectors, paragraph 36 of his judgment applies with no less force to inspectors conducting inquiries into objections to orders under section 118B:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by the misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

[37]In fairness to the claimant, it must be noted that the defendant was initially minded to submit to judgment on the basis that the inspector's reasoning was not adequate. In its Acknowledgment of Service it said:

"The defendant is minded to concede this claim on the basis that the inspector failed to adequately explain and justify his overall conclusions, in the light of his acceptance that the footpaths were facilitating the commission of criminal offences. In finding that there was an alternative route available that was 'reasonably convenient' but nevertheless that the loss of the footpath would outweigh the benefits in protecting members of the public from crime, the inspector appears to have found in the claimant's favour in relation to all parts of the statutory test. In that context, there is an inadequate explanation of his conclusion that the alternative route would be 'less attractive' to users of the footpath, and that that outweighed the benefit to the public of confirming the order."

[38]Having seen the third interested party's response to the claim, the defendant changed his mind and was permitted to file amended grounds opposing the claim. In my judgment the defendant was right to do so. Mr Jones submitted that there was no adequate explanation as to why, having found the alternative route was reasonably convenient, the inspector then concluded it was less attractive to users of the footpath, given that he had earlier accepted in the Decision Letter the evidence of a number of users of the footpath that they did not use the footpath because of fears for their personal safety, litter, graffiti, et cetera. The inspector had also noted that the incidents which those residents described had not been disputed by objectors (see paragraphs 10-20 of the Decision Letter). Mr Jones also criticised the inspector's use of the phrase "avoiding unnecessary interference to the public right of passage". He submitted that it was difficult to see how the inspector could have concluded that the interference was unnecessary when he had earlier accepted that it was expedient that the Path should be stopped up for the purposes of preventing crime, i.e. that interference with the right of public passage was necessary for that purpose.

[39]These criticisms of the inspector's reasoning in paragraph 39, and it is to be noted that it is only paragraph 39 of the Decision Letter which has been subjected to any criticism (apart from ground 6, see above), stem from a failure to read the paragraph as a whole and to recognise that in the conclusions in that paragraph the inspector was responding to the arguments that he had summarised earlier in the report. Thus, the inspector's reference to "unnecessary interference" is a reference back to the objector's case, which he had summarised in paragraph 35. There he noted that the objectors had cited the advice in Circular 1/2003:

"There is a need to strike a balance by protecting communities from crime while avoiding unnecessary interference to the public rights of passage."

[40]In deciding what the inspector meant by his conclusion that the proposed alternative route, although reasonably convenient, was less attractive to users of the existing footpaths, it is important to see why the objectors were saying that the alternative route was less attractive. Again, their case is summarised in paragraph 35:

"The footpath provides a utility and a recreational function. It is a safe route to school, used frequently by those who choose that route in preference to roadside walking. The proposed alternative route is twice the distance and is alongside roads, the part along Dickenson Road carrying heavy traffic."

[41]The inspector, in concluding that the alternative was less attractive than the Path, clearly accepted those points that had been made to him by the objectors. The Council was contending that the Path was little used (see paragraph 32) in part, no doubt, because users were deterred by reason of fears of crime, litter, graffiti et cetera. The inspector, however, concluded, having considered the evidence of both the Council and the objectors:

"I find that the footpaths do have a real purpose for significant numbers of local people who use them regularly."

[42]Thus, while some users were deterred by litter, graffiti, the fear of crime, et cetera, the inspector concluded that significant numbers of people who used the Path regularly were not so deterred, because, despite the existence of a reasonably convenient alternative, they chose to use the Path regularly. They did so because, in the inspector's words, it had "a real purpose" for the them. Although the claimant vigorously disagrees with this assessment, there can be no doubt whatsoever that there was evidence on which the inspector was entitled, reasonably, to reach the conclusion that the footpaths did have "a real purpose for significant numbers of local people who use them regularly."

[43]I accept Mr Buley's submission that in the light of that conclusion it was unnecessary for the inspector to resolve all of the detailed issues listed by Mr Jones in ground (3), issues which were in part matters of perception rather than fact, relating to such matters as graffiti, rubbish, litter, fears for safety et cetera. The critical issue in the list of matters in respect of which Mr Jones submitted the inspector had failed to make any finding, was the level and frequency of use. The inspector clearly did make a finding on that issue. He preferred the evidence of the objectors as to the level and frequency of use to the evidence of limited use that had been adduced by the Council. If significant numbers of local people used the Path regularly, then it was plain that they, at least, were not deterred by fear of crime, the sight of graffiti, litter et cetera, given that the evidence showed that a reasonably convenient alternative route was available to them which they could have taken in order to avoid those problems if they wished to do so.

[44]In summary, the inspector adopted, as he was fully entitled to do, a "proof of the pudding" approach. Despite the drawbacks that have been identified by the claimant, which the inspector had accepted in the earlier part of the Decision Letter, those drawbacks were not so grave as to deter significant numbers of local people from using the Path regularly, in the inspector's view. They did so in preference to the alternative suggested by the claimant. Thus, when the inspector said that in his view the proposed alternative route, although reasonably convenient, was less attractive to users of the existing footpaths, he was not, as a matter of common sense, referring to each and every user; he was referring to the significant numbers of local people who chose to use the Path regularly and for whom it had a "real purpose". Why did they do so? Because they found it more attractive than the alternative which was available.

[45]The issue before the inspector was clearly one of balance. The Council had submitted "that the benefits of closure outweigh any limited adverse effect the closure would have upon the public and also outweigh any remaining marginal historical significance" (paragraph 37). The objectors disagreed (see paragraph 35). In paragraph 39 the inspector agreed with the objectors. In my judgement, he was entitled to do so. I can well understand that the Council is disappointed with the decision. It may indeed be surprised by the decision. It is possible that another inspector might well have reached a different conclusion on the balancing exercise, but that is not to say that this inspector's conclusion is unreasonable. In my judgment, once paragraph 39 is read in the context of the Decision Letter as a whole, and in the light of the way the parties were putting their cases, the inspector's reasoning is entirely intelligible. For these reasons this application for judicial review must be dismissed.

[46]MR BULEY: Very grateful, my Lord. My Lord, myself and Miss Crail appear as yesterday for the defendant and interested parties. Your Lordship may be aware Mr Jones is not feeling very well. He is not well today.

[47]MR JUSTICE SULLIVAN: I express my sympathy. He is not the only one.

[48]MR BULEY: I was going to say it sounds like your Lordship is in a similar position. I am sorry to hear that.

[49]MR JUSTICE SULLIVAN: Yes. I did indicate to Mr Jones' clerk that if there was a difficulty then obviously I would quite happily deal with any contentious issues by way of written submissions if that was what was wanted or even, if necessary, a further hearing, but I hope that will not come to that.

[50]MR BULEY: My Lord, so I had understood and for my part -- and I think Miss Crail is also content with that. We have not been able to agree so far, so there may be contentious issues about costs, I think we will all, therefore, invite your Lordship to deal with any issues about costs on the basis -- for my part I would say on the basis of written submissions, if it comes to that. I hope we will be able to agree.

MR JUSTICE SULLIVAN: Shall I just see what Mr Neill says?

[52]MR BULEY: Yes.

MR JUSTICE SULLIVAN: You are very new to this, Mr Neill, so what is your position?

[54]MR NEILL: My Lord, the position of the claimant is that we clearly would hope to agree with both the interested party and the defendant all issues as to costs. However, we do say that, should necessity arise, it would be important to deal with those issues at an oral hearing. We would not want to have that opportunity removed at this stage.

[55]MR JUSTICE SULLIVAN: No, I would not rule that out. What I suggest, Mr Neill, is that any consequential applications, whether they are costs or whether they are applications for permission to appeal, are dealt with in writing. We can set a timetable if necessary, but obviously with liberty to apply for an oral hearing if necessary. I think, so far as permission to appeal is concerned, again it might be (inaudible). If you want to make a pitch you can, but it may be more convenient for the Council to consider the judgment and have the opportunity to consider that with Mr Jones before deciding whether or not they want to apply and, if so, on what grounds. I am perfectly happy to make provision for that in the order, subject to anything Mr Buley or Miss Crail may say. It seems perfectly fair.

[56]MR BULEY: Indeed, my Lord, I am perfectly --

[57]MR JUSTICE SULLIVAN: Yes. So what I will do then, I will dismiss the application, all consequential applications, whether for costs, for permission to appeal, or, indeed, for anything else, are to be dealt with, if at all possible, on the basis of written representations, but with liberty to apply for an oral hearing if it is considered that that is not a fair way of dealing with them.

[58]Now, so far as representations about costs are concerned, how long do you want for that, Mr Neill? By all means take instructions. What I would like to do is to give the parties enough time to see if they can sort it out by themselves by agreement, rather than rushing into it, so there is no great hurry. I cannot imagine that the defendant or the interested party are going have their tongues hanging out over Christmas waiting for costs.

[59]MR NEILL: My Lord, that seems a sensible approach, and given that Christmas is approaching --

[60]MR JUSTICE SULLIVAN: I would have thought by, say, the first week. Term starts again on 11th January, does it not? I think so. Why do we not say something like 15th January, or something like that?

[61]MR BULEY: (Nodded).

MR JUSTICE SULLIVAN: Right?

[63]MR NEILL: I am grateful.

MR JUSTICE SULLIVAN: Is that all right, Miss Crail?

[65]MISS CRAIL: My Lord, I was going to say something which, I do not know, may or may not make a difference as to whether or not the parties can agree on costs. I anticipate that the sticking point is likely to relate to the interested party's costs rather than to the defendant's costs, for obvious reasons. My Lord, the chronology of this action can be broken down into three stages. Down to the date of service of the defendant's detailed grounds of defence, phase 2 from there to the service of the defendant's skeleton argument, and, phase 3, costs thereafter.

[66]My Lord, my client is intent on trying to recover the costs of stage 1, but it might be helpful to the parties if your Lordship felt able to give any sort of informal and preliminary indication as to how receptive your Lordship might be to any application for costs for my client's stages 2 and/or 3. Whether that is something that your Lordship has any preliminary views on, I do not know. If your Lordship has, then it might help the parties to know what they were.

[67]MR JUSTICE SULLIVAN: Well my preliminary view would be, generally having gingered up the defendant and prodded the defendant into action, once you saw that the defendant was indeed on the right track and was going to raise substantially the points that you wanted, then, while a second lot of costs would not be ruled out, thereafter, you would have to make a pretty good showing in order to get them because it does seem to me that thereafter this was very much a case where the defendant, having been gingered up by the interested party, was going hammer and tongs, effectively, on all the points that the interested party wanted it to. So there really was not very much extra. I am not saying that your skeleton argument was not very helpful, but it did not seem to me -- I know I am asking for submissions now about it, but you asked for an impression. That is my impression. It was not a case were there was such a sufficiently wide divergence between the interests of the interested party and the defendant as to warrant a second set. That would be my instinct now. So if that is helpful to you.

[68]MISS CRAIL: My Lord, I am sure that is very helpful.

[69]MR JUSTICE SULLIVAN: Right. Yes?

[70]MR BULEY: My Lord, there is only one other very minor matter. It is just for the transcript. Your Lordship when referring to the Amin judgment referred to "Schiemann LJ". He was Schiemann J at the time.

[71]MR JUSTICE SULLIVAN: Oh, was he? So he should be "Schiemann J (as he then was)". Right. Thank you very much. What I will do, then, Mr Neill: Written submissions on costs if the parties cannot agree. Let us just say by the end of the first week of next term. It starts on Friday, 11th. By the 18th of January 2008.

[72]MR BULEY: (Nodded).

[73]MR JUSTICE SULLIVAN: I will also impose that time limit for your application for permission to appeal, if you are going to make one, any representations about that, and if the defendant or the interested party have submissions as to why you should or should not then they can say so. I am sure the transcript will be out by pretty much the end of this term, but there is no reason why all Mr Jones' Christmas holiday should be ruined by having look over my transcript. He should enjoy the Christmas and New Year and then think about it.

[74]MR NEILL: My Lord, I am grateful, but would you be able to clarify the situation where the claimant would require liberty to apply for an oral hearing?

[75]MR JUSTICE SULLIVAN: Yes, I put in a provision to say liberty to apply for an oral hearing if the parties are not agreed that the matter can be disposed of in writing, which means any one party, if they are dissatisfied, can insist on an oral hearing. Whether it is wise to do so will be a matter for them to decide. Right, thank you very much.