The Secretary of State’s planning inspector confirmed a public path creation order, so as to create a footpath of a specified length and width running from and to specified points along a national trail which was intended as a bridleway, namely the South Downs Way. The claimant, whose land was affected by the confirmation of the order, applied to the High Court under paras 2 and 3 of Sch 2 to the Highways Act 1980, contending that the creation of the footpath by way of the order was not within the powers of the 1980 Act. In particular, the claimant argued that the inclusion of its land in the order was not necessary, or alternatively not expedient, to the creation of a footpath, those being the first two tests in s 26 of the 1980 Act. It was said that the dimensions of the footpath were only promoted to facilitate a bridleway and no-one had suggested that they were either necessary or expedient for a footpath. It was further, according to the claimant, insufficient for the inspector to have had stated after confirming the order that the same ‘would not preclude the later creation of bridleway rights over the route provided the test in section 26 of the 1980 Act were met’
Held: Application allowed. When assessing the need for a footpath and whether it would be expedient to create it, having regard to the public amenity and the impact on the landowner affected, s 26 of the 1980 Act required those two tests to be applied both in respect of the principle of the footpath but also to the detail of its alignment, length and width. The inspector had confirmed the order under challenge with the dimensions of the proposed bridleway so as not to preclude its subsequent creation; however, it did not appear that he had posed for himself the statutory test under s 26 of the 1980 Act, namely were the dimensions needed for a footpath and did they pass the test of necessity, expediency and discretion. Had he done so, the obvious answer was that they were not and did not.