As residential development sites grow larger, there is the increasing possibility that there will be a public footpath over the site (we as a team have come across at least four in the past year in our acquisition work). This causes numerous issues as it either has to be catered for in the scheme which could have an impact on unit numbers and planning more generally or time and money has to be spent applying to the council for a diversion order in the event that the only way to organise the scheme is to change the position of the public footpath.
In the case discussed in the article below, Liven J held that the inspector is also bound in deciding test 3 stage to take into account the "benefits" of the diversion to the owner or the public. This added additional guidance as this is not expressly included in the matters to which the inspector is to have regard. Therefore, this could potentially lead to it being made “easier” for a landowner to pass the “test” for a diversion order. In the case at hand, the benefit to the individual owner was privacy. It remains to be seen whether or not a developer would be able to successfully make this argument in respect of its financial interests however the effect of this decision could be that it becomes easier for developers to obtain a confirmed diversion order. There is also the possibility that the OSS may take this case to appeal – watch this space!
Lieven J has held that the inspector is also bound, in deciding at the test 3 stage whether to confirm, to take into account the interests of the owner or of the public (as the case may be), even though the relevant interests are not expressly included in the matters to which the inspector is to have regard.