Powell & Anor v Secretary of State for Environment, Food & Rural Affairs & Anor [2009] EWHC 643 (Admin)

[2009] EWHC 643 (Admin)

Case No CO/7364/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/03/2009

Before

MICHAEL SUPPERSTONE Q.C.

Sitting as a Deputy Judge of the High Court

Between

Mr Ainsley David PowellFirst Claimant

Justine Thornton (instructed by Pinsent Masons) for Claimants

Philip Coppel (instructed by the Solicitor to the Department for Environment Food and Rural Affairs) for the Defendants

Hearing Hearing dates: 20 February 2009

Judgment

Michael Supperstone QC:

Introduction

[1]The Claimants apply under paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 ("the 1981 Act") for an order quashing a decision of the Secretary of State for Environment, Food and Rural Affairs, the First Defendant, acting by his Planning Inspector, dated 11 June 2008, confirming a Footpath Modification Order ("the Order") made by Doncaster Metropolitan Borough Council, the Second Defendant, on 24 August 2007.

[2]The effect of the Order is that a public footpath will run through the back garden of a newly built house jointly owned by the Claimants at 6 Vicarage Close in the village of Hatfield in Doncaster (“the property”).

[3]The Claimants challenge the Order on two grounds. First, that in refusing an application by Mr Powell, the First Claimant, for an adjournment of the public inquiry into the Order, the Inspector acted unfairly, in breach of the rules of natural justice and thereby outside his powers under the Act. Second, there was no evidence before the Inspector on which he could have reached the conclusion he did that the width of the right of way was 1.4 metres.

The Legislative Framework

[4]The obligations of a local authority in relation to footpaths are set out in the 1981 Act. In particular, under section 53 the local authority is placed under a duty to keep a map of public paths in its area (known as the Definitive Map) under review. Section 53(2) provides: "As regards every definitive map and statement, the surveying authority shall …(a) as soon as reasonably practicable after the commencement date, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence before that date, of any of the events specified in subsection (3); and

(b) as from that date, keep the map and statement under continuous review and as soon as reasonably practicable after the occurrence on or after that date, of any of those events, by order make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence of that event".

[5]The events specified in sub-section (3) include the following:

"(b) the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path … ; (c) the discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows (i) that a right of way which is not shown in the map and statements subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies." (i) that a right of way which is not shown in the map and statements subsists or is reasonably alleged to subsist over land in the area to which the map relates, being a right of way to which this Part applies."

[6]Section 53(3)(b) relates to events which have happened since the definitive map was prepared. Principally, section 53(3)(b) will be brought into play through 20 years' use of a way as of right, thereby invoking the statutory presumption under section 31 of the Highways Act 1980 ("the 1980 Act"). Section 31 of the 1980 Act provides, so far as is material:

"(1) Where a way over any land, other than a way of such character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. (2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice such as is mentioned in subsection (3) below or otherwise. (3) Where the owner of the land over any such way as aforesaid passes – (a) has erected in such a manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and (b) has maintained the notice after the 1st January 1934 or any later date on which it was erected, the notice in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway." (3) Where the owner of the land over any such way as aforesaid passes – (a) has erected in such a manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and (b) has maintained the notice after the 1st January 1934 or any later date on which it was erected, the notice in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway."

[7]Section 53(4) of the 1981 Act provides that:

"The modifications which may be made by an order under subsection (2) shall include the addition to the statement of particulars as to – (a) the position and width of any public path … which is to be shown on the map;"

Section 53(5) provides:

"Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule 14 shall have effect as to the making and determination of applications under this subsection."

Subsection (6) is to like effect in relation to events falling within sub-paragraph (a) of subsection (3).

[8]The provisions of Schedule 15 to the 1981 Act have effect as to the making, validity and date of coming into operation of orders. Schedule 15 makes provision for consultation, publicity, submission of the order to the Secretary of State, appointment of inspectors, local inquiries and proceedings for questioning the validity of orders. Pursuant to paragraph 12 of Schedule 15:

"(1) If any person is aggrieved by an order which has taken effect and desires to question its validity on the ground that it is not within the powers of sections 53 and 54 or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph. (2) On any such application the High Court may, if satisfied that the order is not within those powers or that the interests of the applicant have been substantially prejudiced by a failure to comply with those requirements, quash the order, or any provision of the order either generally or in so far as it affects the interest of the applicant."

[9]An appeal under Schedule 15 is in the nature of a statutory judicial review and is limited to ordinary public law grounds (Norman and Anr v Secretary of State for Environment, Food & Rural Affairs

[2007] EWCA Civ. 334

, per Laws LJ at para 3).

[10]Detailed procedural rules for the conduct of any public inquiry into an order are laid down in the Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007 ("the Rules").

[11]Pursuant to Rule 8(1) of the Rules the persons entitled to appear at an inquiry are the authority who made the order, the applicant for the order, every person who has made an objection which has not been withdrawn and everyone else who has submitted a statement of case. Pursuant to Rule 8(2) the Secretary of State may permit any other person to appear at a hearing and such permission shall not be unreasonably withheld.

[12]Under Rule 21(15) "The inspector may –(a) proceed with the inquiry in the absence of any person entitled or permitted to appear at it;

(b) take into account any written representations, evidence or any other document received by him from any person before the inquiry opens or during the inquiry, provided he discloses it at the inquiry; and

Factual Background

[13]On 24 August 2007 the Second Defendant made a Footpath Modification Order which provided for a right of way through the garden of the property. The house and other surrounding houses had been developed by HSL Developments Limited ("HSL"). On 16 October 2007 HSL submitted an objection to the Order. On 28 November 2007 in light of the objection from HSL, the Second Defendant submitted the Order to the First Defendant for confirmation.

[14]In December 2007 the Claimants purchased the property from HSL. During negotiations for the purchase, Solicitors for the Claimants and Solicitors for HSL agreed that HSL would continue to pursue their objection to the Order. The deadline for submission of the Statement of Case by HSL under Rule 17 of the Rules was 7 April 2008. On 15 April 2008 the Claimants received a letter from the Second Defendant advising them that HSL had not pursued the objection or filed a Statement of Case.

[15]By letter dated 22 April 2008 Bell Dallman & Co. (“Bell Dallman”), Solicitors for the Claimants, wrote to Messrs Atteys, Solicitors for HSL as follows:

"In your letter to us of 8th November 2007 you stated that your clients would continue with the appeal until the matter was resolved. We are disappointed to note, therefore, from the Council's letter that your clients did not submit evidence to the Planning Inspectorate in support of their objections of the claim by the 7th April deadline. Can you please offer us an explanation as to why they did not do so and can you also confirm that they will now do so despite the obvious difficulties in introducing evidence at this stage."

On 30 April 2008, not having received a reply to their letter of 22 April 2008, Bell Dallman wrote further to Messrs Atteys, stating, "Please confirm:- 1. What steps and actions your clients have taken to date to contest the claim for a public footpath? 2. Why have they failed to keep our clients informed of the situation, particularly as to the deadline for submission of evidence to the Planning Inspectorate, thus depriving our clients the opportunity of putting their own evidence forward? Our clients are concerned that they have been misled by your clients into entering into the contract to purchase the above property and are presently considering their position".

[16]By letter dated 29 April 2008 Atteys replied to the letter dated 22 April 2008 from Bell Dallman:

"We confirm that we are no longer in receipt of instructions with regard to this matter and should be obliged if you would address all future correspondence directly to HSL Developments Ltd."

Bell Dallman did write directly to HSL, but did not receive a response.

[17]The Claimants sought advice from the Solicitors who had acted for them on the purchase of the property but were informed that the matter was outside their expertise. On 1 May 2008 the Claimants instructed a Planning Consultant, Mr Wright, with expertise of footpath matters. Mr Wright formed the view that there was inadequate time to prepare for the inquiry to be held on 20 May 2008. On 6 May 2008 Mr Wright applied to the Planning Inspectorate for an adjournment. The Second Defendant did not oppose the application, however the request for an adjournment was refused.

[18]At the opening of the Inquiry on 20 May 2008, Counsel for the First Claimant applied for an adjournment on the basis that the First Claimant had had inadequate time to prepare for the Inquiry. Written submissions made by Ms Thornton, who appeared at the Inquiry on behalf of the First Claimant and who appears on the present appeal on behalf of the Claimants, stated that, in so far as is material, "13. In order to properly prepare his case, Mr Powell needs to do the following:(a) Investigate whether the 1967 Order diverting the path from the site of his property was implemented in practice or whether the use of the original definitive line continued as before. Having only purchased the property at 6 Vicarage Close in December 2007, Mr Powell has no personal knowledge of the history of the site and surrounding area. Those advising Mr Powell need to establish whether and the extent to which members of the public were prevented from using the footpath following the making of the 1967 Diversion Order. In particular they need to consider the evidence as to the actions of the Church during the relevant period.

(b) Consider the evidence already available which indicates there was a challenge to public use including: (i) the 1967 Order diverting the right of way, (ii) a hole in the wall made at the relevant point to accommodate the revised route … (iii) the claim referred to by the Council in its Statement of Case that notices challenging public use were erected by the Church and subsequently vandalised …

(d) Consider and test the evidence put forward by members of the public in light of the outcome of research and investigation under (a), (b) and (c) above including the location and direction of the footpath sign which pointed up the alley by the side of the Kissing Gate.

(e) Respond to the legal arguments raised by the Council in relation to the re-establishment of public way rights and the legal significance of the 1967 Diversion Order as evidence of a challenge to public use. 17. Counsel has been instructed to attend the Inquiry but cannot properly represent Mr Powell if the adjournment is refused and the Inquiry proceeds. Members of the public can not be tested on their statements in the absence of the research and investigations outlined above. Mr Powell will be present at the opening of the Inquiry on 20 May 2008, but cannot give evidence about historical matters as he only purchased the property in December 2007. The outcome of the investigations and research outlined above may lead Mr Powell to seek to call witnesses to give evidence. Given the circumstances of this matter, it is submitted that the Inspector cannot properly come to a decision on the merits of confirming the Order. Further there are no procedural or other mechanisms available to the Inspector by which he can mitigate the unfairness to Mr Powell of proceeding with the Inquiry." (i) the 1967 Order diverting the right of way, (ii) a hole in the wall made at the relevant point to accommodate the revised route … (iii) the claim referred to by the Council in its Statement of Case that notices challenging public use were erected by the Church and subsequently vandalised …

[19]The Inspector refused the adjournment. The First Claimant and Counsel left the Inquiry. The Inquiry continued in their absence. On 11 June 2008 the Inspector published his decision confirming the Order. On 26 June 2008 the Second Defendant published the Order which took effect on the same day. On 5 August 2008 the Claimants applied for an order quashing the decision of the First Defendant. 20. The Decision of the Inspector The Inspector stated in his decision letter (“the decision letter”), in so far as is material, as follows:

"Background information 2. The claimed public footpath commences on Footpath 13 Hatfield at A on the Order map, a point within St. Lawrence's churchyard, and runs in a generally north-easterly direction for approximately 35 metres to point B, to connect with another part of Footpath 13. Until 1967, the claimed route formed part of Footpath 13, but had been diverted by Order upon the request of the Vicar of Hatfield of the day, the Rev. Greathead. The current definitive line of Footpath 13 follows the right angle turn shown on the Order map between points A and B. The claimed route, together with the remainder of Footpath 13 running away from St. Lawrence's churchyard is known locally as Spider Alley. 3. Until 2006, the land crossed by the claimed footpath formed part of the land belonging to St Lawrence's vicarage. The vicarage grounds were sold to HSL Developments Ltd ("

HSL") for housing development, and the land crossed by the claimed footpath now forms part of the rear garden of No.6 Vicarage Close. Mr A.D. Powell purchased this property from HSL in December 2007. Procedural Matters 4. There was only one statutory objector to the Order. This objection was made on behalf of HSL on 16 October 2007. … 12. … Whereas the Council had indicated its consent to a written request for an adjournment that had been made to the Planning Inspectorate prior to the opening of the Inquiry, it took a different view with regard to the verbal application at the Inquiry as it witnesses may be inconvenienced by an adjournment. 13. In response to my questions, Mr Powell stated that he had been informed by the developer of the footpath claim when he commenced negotiations to buy his property in October 2007. He had not undertaken any research work in the local area himself, as he employed professional advisers to undertake such matters on his behalf. Although it was submitted that an adjournment was required because Mr Powell had not had adequate time to prepare his case, it is clear to me that Mr Powell, or his representatives, had had approximately 8 months in which to take an active part in the proceedings relating to an application which had the potential to severely impact upon his newly-purchased property. 14. I declined the request for an adjournment. Although Mr Powell or his representatives may have missed the statutory deadline (17 October 2007) for making an objection to the Order, there was adequate opportunity for him or his representatives to engage in the process by either inquiring of the Council as to the procedure that would be followed, or by contacting the Planning Inspectorate directly to make a similar enquiry. There is no evidence to suggest that Mr Powell or his representatives took any such action; I agree with the Council that it is odd that reliance was placed upon HSL to pursue an objection when that company had no further interest in the land at issue following its sale in December 2007. 15. If the first Mr Powell had known of the application was when he had received the Council's courtesy letter in mid-April, his request for an adjournment on the grounds stated would have carried greater weight, and I would have been inclined to adjourn for him to take advice. In the circumstances of this case, however, I do not agree that Mr Powell found himself in a situation that was not of his own making. 16. I give no weight to the issue of the impact of the Order, if confirmed, would have upon Mr Powell's property; such issues are irrelevant in relation to the determination of an Order made under Section 53 of the 1981 Act. … 17. I consider that Mr Powell had the opportunity of a fair hearing at the Inquiry; the fact that his representatives had not engaged in the process at an earlier stage clearly compromised Mr Powell's ability to take part in the Inquiry for which other parties had prepared. Although it was submitted that it would be necessary to test the Council's user evidence and to question the approach taken by the landowner during the relevant 20-year period, the opportunity to do so was not taken up by Mr Powell or his Counsel at the Inquiry. The date on which the right of the public to use the claimed footpath was brought into question 25. … In the absence of any evidence to the contrary I accept that use of the claimed path was brought into question in 2006 by the erection of fencing at A and B, and conclude that the 20-year period under consideration for the purposes of Section 31 of the 1980 Act is from May 1986 – May 2006. Whether the claimed footpath was used by the public as a right and without interruption for a period of not less than 20 years ending on the date the public right was brought into question 28. All the witnesses spoke of the claimed path as having been open and available for public use until 2006. 32. Although none of the evidence of use given was challenged, I briefly report what was put to me as it struck me as being cogent and consistent evidence of the path in question having been used by the public for a period in excess of the 20 years under consideration. 35. … I conclude that the evidence demonstrates unrestricted and unchallenged use of the Order route as of right throughout the 20-year period in question and is sufficient to raise a presumption of the dedication of the Order route as a public footpath. Whether there is sufficient evidence that there was during this 20-year period no intention to dedicate the claimed footpath 39. … There is no evidence before me that an intention not to dedicate a footpath over the Order route was communicated in any way to the public whilst Rev. Greathead held office. 40. Similarly, more importantly for the purposes of determining this Order, there is no evidence that Rev. Greathead's successors have made the public aware that there was no intention to dedicate the path. … 42. Having given consideration to these matters I concur with the Council's analysis and conclude that there is insufficient evidence of the lack of intention to dedicate a public footpath over the claimed route during the 20-year period under consideration. Conclusions 43. I have concluded that the evidence adduced by the Council is sufficient to raise a presumption of dedication of the public footpath and that there is insufficient evidence of a lack of intention to dedicate a public right of way. It follows that I am satisfied that, on a balance of probabilities, a public right of way which is not shown in the definitive map and statement subsists over the Order route. 44. … I conclude that the Order should be confirmed." "Background information Procedural Matters 17. I consider that Mr Powell had the opportunity of a fair hearing at the Inquiry; the fact that his representatives had not engaged in the process at an earlier stage clearly compromised Mr Powell's ability to take part in the Inquiry for which other parties had prepared. Although it was submitted that it would be necessary to test the Council's user evidence and to question the approach taken by the landowner during the relevant 20-year period, the opportunity to do so was not taken up by Mr Powell or his Counsel at the Inquiry. Conclusions The Parties' submissions Issue 1: The Refusal of an Adjournment

The Parties' submissions

[20]Ms Thornton submitted that for the Claimants the impact of the Order is draconian. They now have a public right of way passing through their garden with the consequent significant impact on the enjoyment of their home and garden and on the value of the property. The First Claimant could not be said to have had a "fair crack of the whip" (Fairmount Ltd v Secretary of State

[1976] 1 WLR 1255

at 1266, per Lord Russell) for a number of reasons. First, he was denied the opportunity to carry out the investigations necessary to prepare his case for objecting to the Order. The relevant matters for investigation are summarised in the written submissions referred to in paragraph 18 above. Second, the Claimants found themselves in the position they did, through no fault of their own, as a result of an agreement entered into with HSL, negotiated by professional advisers on their behalf. Third, the Claimants have not been at fault since receiving the letter of 15 April 2008 from the Second Defendant. Fourth, the First Claimant was the only person objecting to the Order. Consequently, once he was unable to participate in the Inquiry, the evidence of local residents (with an interest in the Order being confirmed) was not properly tested. Fifth, as the Inquiry was only listed for a day, it was not a case where justice could be done by allowing the evidence to be presented prior to the end of the Inquiry after necessary time had been spent preparing the case (contrary to the position in Co-op Retail Services Ltd v. Secretary of State for Environment

[1980] 1 WLR 271

at 276, per Phillips J).

[21]Further Ms Thornton submitted that the Inspector's reasoning was defective in four respects. First, the Inspector misdirected himself in ruling that the impact of the Order on the First Claimant's home and the enjoyment of his property was irrelevant to his decision whether to grant an adjournment or not (see para 16 of the decision letter). Second, the Inspector formed the view that the First Claimant's reliance on HSL to pursue the objection to the Order was "odd" (para 14 of the decision letter). However this arrangement, which was not disputed, was agreed through professional advisers. The question of whether the First Claimant's reliance on HSL to pursue an objection was "odd" was irrelevant to the question of whether it was fair to deny him an opportunity to present his case in circumstances where HSL was no longer pursuing the objection and had not informed the Claimants. Third, fairness required the Inspector to consider the disparity of the impact of an adjournment on the convenience of local residents who attended the Inquiry to give evidence as compared with the impact on the Claimants of a failure to adjourn the Inquiry. There is an existing right of way around the Claimants’ garden which the local residents could have continued to use during the adjournment; it adds approximately 30 seconds to their journey compared with going through the Claimants’ garden. The interest of the local residents in the right of way is for leisure purposes whereas the Claimant's interest is fundamental to their enjoyment of their home and the value of their property. Fourth, the view of the Inspector that having refused the adjournment, Mr Powell and his advisers could have participated in the Inquiry (see para 17 of the decision letter) fails to take into account the principle that "a mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case to the fullest sense" (R v Thames Magistrates Ex parte Polemis

[1974] 1 WLR 1371

at 1375, per Lord Widgery CJ).

[22]Ms. Thornton submits that it is by no means inevitable that the Inspector's decision would have been the same had the First Claimant been given the opportunity to prepare his case (R (Smith) v North Eastern Derbyshire Primary Care Trust

[2006] 1 WLR 3315

at 3320). For this reason, in addition to the first and third points made in paragraph 22 above, the court is asked to exercise its discretion to quash the decision, if satisfied that therehas been a breach of natural justice.

[23]Mr Coppel, for the First Defendant, submitted by reference to Rule 21(15) of the Rules that the default position is one of adherence to timetables so as to meet the wider public interest of due disposal of disputes. That the procedure is highly prescriptive as to time limits is apparent from Rules 15-17 and 20-22, in particular. In an application for an adjournment the tribunal (or reviewing court) must balance the potential prejudice to the person seeking the adjournment against the public and other private interest in a speedy determination of the proceedings (R v Institute of Chartered Accountants, ex parte Brindle

[1994] BCC 297

, CA). Mr Coppel emphasised that the power to adjourn is one "which has to be exercised with great care and only when there is a real risk of serious prejudice which may lead to injustice" (R v Panel on Takeovers and Mergers, ex parte Fayed

[1992] BCC 524

at 531, per Neill LJ). Here, the Inspector carried out the balancing exercise fairly and the refusal of the adjournment request was entirely fair. The interest that the owners of the houses stood to lose in Fairmount Investments Ltd, a compulsory purchase case, was substantially greater than the interest at stake in the present case.

[24]Mr Coppel submitted that the reasoning of the Inspector was sound. In any event what matters for the purposes of these proceedings is not his reasoning but whether he reached the right result on the question of whether to grant the adjournment (R (on the application of Mahfouz) v. Professional Conduct Committee of the General Medical Council

[2004] EWCA Civ. 233

at paras 19-20, per Carnwath LJ).

[25]There was no doubt that the decision was correct. The approach adopted by the First Claimant was high risk from the outset. He submitted that the Claimants were at fault in leaving HSL to pursue the objection when they would have no interest in doing so after the sale of the house was completed in December 2007. The Claimants should have protected their position after that date to ensure that they were informed as to the progress of the objection and that it was properly pursued. After receiving the letter of 15 April 2008 from the Second Defendant the Claimants continued to adopt an approach that involved risk; they made an application for an adjournment, which failed, and then chose to renew that application at the Inquiry without taking steps to ensure that they were as prepared for the Inquiry as they could be if they failed to obtain an adjournment. At the Inquiry when their application for an adjournment was turned down the Claimants and Counsel chose to leave rather than stay and test the evidence of witnesses for the purpose of demonstrating inconsistencies.

Discussion

[26]It was agreed between the First Claimant and HSL that HSL would vigorously pursue the objection to the Order. The Inspector (and the Second Defendant) considered this to be "odd" (see para 14 of the decision letter). However it is not disputed that there was such an agreement. Moreover it was made through the parties' respective solicitors. The First Claimant "was content to leave matters in the hands of the developers, believing them to be committed to the objection and more familiar with the property issues of the development site" (para 11 of his Witness Statement dated 5 August 2008). It now appears that there was an additional reason for the agreement. The First Claimant has a medical condition which played a part in his decision to rely on HSL who had agreed through the parties' respective legal advisers to pursue the objection. The First Claimant did not wish to mention his medical condition when making the application for an adjournment to the Inspector and so the Inspector had no knowledge of it when making his decision. This is not a matter that can now be taken into account, nor do I do so. On the basis of the evidence before the Inspector I reject the suggestion that the First Claimant was at fault in leaving it to HSL to pursue the objection, an agreement to that effect having been reached through solicitors.

[27]In a case involving questions of administrative procedure, the general rule that a party is bound by the acts of his legal advisers is not necessarily to be applied in the same way. As Mr Moriarty QC, sitting as a Deputy Judge, said in Majorpier Ltd v. Secretary of State for the Environment and Others [1990] 59 P. and C. R. 453 at 466, "… when one is considering questions of natural justice, one ought to have regard to the position of the lay client personally and not simply to that of his legal advisers as his representatives. In my view I ought to answer the question, "Was an adjournment necessary for the appellant to present his case?" with the emphasis on the appellant in the personal sense."

[28]There is nothing to suggest that the First Claimant should have appreciated HSL were not pursuing the objection until he received notice of this fact from the Second Defendant by letter dated 15 April 2008. Thereafter the Claimants sought to find advisers with relevant expertise in footpath matters. This took until 1 May 2008. However I am reminded of the words of Stephenson LJ in Co-operative Retail Services Ltd v. Secretary of State for the Environment

[1980] 1 WLR 271

at 274 where he said that he "would not like to be thought insensitive to the difficulties of getting specialist counsel and specialist experts to support opposition to an appeal …". Thereafter Mr Wright applied unsuccessfully to the Planning Inspectorate for an adjournment. Notice of an application for an adjournment at the start of the Inquiry was then given and the application was subsequently made.

[29]In her written submissions dated 19 May 2008 Ms Thornton summarised what needed to be done in order for the First Claimant properly to prepare his case (see para 18 above). Plainly, in particular in the light of Mr Wright's other commitments, this preparation could not be completed before 20 May 2008. For the First Claimant and Ms Thornton to remain at the Inquiry, and question witnesses in order possibly to establish inconsistencies in their evidence, would be no substitute for the First Claimant "getting his tackle in order and being able to present his case in the fullest sense" (see para 22 above).

[30]The letter dated 14 April 2008 from the Second Defendant correctly noted that the public footpath would create "significant potential implications" for the First Claimant's property and raised matters that "may have a significant impact" on him. Whilst the impact of the Order on the Claimants may not be relevant to the substantive issue before the Inspector, it is, in my view, relevant to matters of procedural fairness arising during the proceedings, and in particular to the determination of the application for an adjournment.

[31]In my view the refusal of the application for an adjournment did amount to a breach of the rules of natural justice. I do not consider that it is inevitable that the Inspector's decision would have been the same had the First Claimant been given the opportunity to prepare his case (R (Smith) v. North Eastern Derbyshire Primary Care Trust

[2006] 1 WLR 3315

at 3320). In any event it is "absolutely basic to our system that justice must not only be done but must manifestly be seen to be done" (Ex p. Polemis

[1974] 1 WLR 1371

at 1375, per Lord Widgery CJ). In my view the Claimants have suffered substantial prejudice from the making of the Order; by contrast local residents can continue to use an existing footpath which will add no more than 30 seconds to their journey, pending the re-determination of the confirmation of the Order. These considerations lead me to exercise my discretion in favour of quashing the decision of the First Defendant.

Issue 2: The Width of the Footpath

[32]The Order made by the Second Defendant and confirmed by the Inspector provided for a footpath width of 1.4 metres. However the Inspector's decision letter makes no reference to the width of the footpath or any evidence to the effect that it is 1.4 metres in width.

[33]Mr Coppel submits that even if it be the case that the issue was not explored in oral evidence to the Inquiry, that is not to say that there is no evidence on which the Inspector could have based his view. Mr Coppel refers first to a site visit that the Inspector conducted on 19 May 2008. Second, he refers to the witness statement of Ms Winnard that the Second Defendant had evidence on which the 1.4m. figure could be fairly based. There is however a problem with both these points. As for the first, the Inspector notes in paragraph 1 of the decision letter that he was only able to view the route in question "as far as was possible from public vantage points". As for the second, the witness statement of Ms Winnard is dated 18 August 2008 and refers to an assessment of Mr Diprose "of the minimum area actually used by the public" (para 8), which was not in evidence before the Inspector. Finally Mr Coppel says that the Claimants could have challenged the width of 1.4 m but did not do so.

[34]Ms Thornton submits that the width of the footpath is of considerable practical importance to the Claimants because the path runs through the middle of their garden. An earlier 1967 Order, which relates to the same footpath, indicated that the footpath was 3 feet in width.

[35]In the light of my conclusion on Issue 1 it is not necessary for me to determine whether the Inspector's decision as to the width of the footpath is erroneous in law, and I do not do so. No doubt now it is appreciated that the width of the footpath is a live issue between the parties evidence at any further inquiry will be adduced so that the matter can be properly determined.

Conclusion

[36]In my judgment for the reasons that I have explained the Inspector's decision refusing an application by the First Claimant for an adjournment of the public inquiry into the Order was made in breach of the rules of natural justice and thereby outside the First Defendant's powers under the 1981 Act and the Order will be quashed.