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

The local order making authority made a footpath modification order (FMO) pursuant to s 53 of the Wildlife and Countryside Act 1981. The FMO, in effect, provided a right of way through the back garden of a property in the village of Hatfield in Doncaster. In October, an objection was lodged to the FMO. As a result, the FMO was submitted to the Secretary of State for confirmation. The Secretary of State subsequently appointed an inspector to consider the FMO at a public inquiry. In May 2008, a planning consultant with expertise in footpath matters – then acting for the claimants – applied to the inspector for an adjournment of the inquiry on the ground that the claimants had had inadequate time to prepare for the same. At the start of the inquiry, notice of an application for an adjournment was given. Counsel appeared to make representations on behalf of the first claimant. The Secretary of State did not oppose the adjournment application. In a decision letter published on 11 June the adjournment application was refused and the FMO was confirmed. The claimants, who had become joint owners of the property in December 2007, applied under para 12 of Sch 15 to the 1981 Act for an order quashing the inspector’s decision. The Claimant challenged the decision on the basis of the inspector’s refusal of the application for an adjournment of the inquiry. The particular complaint made by the claimants was that such refusal had been unfair; that there had been a breach of the rules of natural justice; and, in consequence, a decision had been made which was outwith the powers as provided for under the 1981 Act.

Held: Application allowed. it was clear that the FMO would create ‘significant potential implications’ for the property. Matters had also been raised which indicated that the confirmation of the FMO might have a significant impact on the claimants. Further, whilst the impact of the FMO on the claimants might not have been relevant to the substantive issue at the inquiry, it was relevant to matters of procedural fairness which had arisen during the proceedings, and in particular to the determination of the application for an adjournment. The refusal of the application for an adjournment had amounted to a breach of the rules of natural justice. Moreover, it was not inevitable that the inspector’s decision would have had been the same had the claimants been given a proper opportunity to prepare their case. The claimants had suffered substantial prejudice from the confirmation of the FMO; by contrast local residents could continue to use an existing footpath, which, on the evidence, would have added no more than 30 seconds to their journey, pending the re-determination of the FMO. Accordingly, the FMO had been confirmed by the inspector outwith the powers as provided for under the 1981 Act. In all those circumstances, the FMO would be quashed.

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