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Friday, 7 December, 2001, 13:07 GMT
Burgled couple lose footpath fight
The diversion would have been short
A couple who have suffered three burglaries have failed in a High Court battle to have a public footpath which passes through their garden diverted.

Their lawyers had argued ancient rights which protect public access to footpaths were also assisting modern burglars to plunder homes.

David and Celia Hargrave, of Trench Bill, Painswick, near Stroud, Gloucestershire, asked a judge to rule in favour of action to divert the path.

It passes through their garden, allowing walkers to see right into their home.

Widespread impact

They challenged a refusal by Stroud District Council to refer the case to the then environment secretary for a final decision under the 1980 Highways Act.

But on Friday deputy High Court judge Michael Supperstone QC rejected their challenge, leaving them with a 4,384 legal bill.

The judge said: "In my judgment the council was not under a duty to refer the diversion order to the secretary of state for confirmation."

Peter Birts QC, appearing for the couple, was refused permission to appeal but indicated the Court of Appeal itself would be asked to hear the case.

Mr Birts told the judge the case raised "an enormously important point of law" which would have an impact countrywide on applications to divert or extinguish public rights of way.

Short detour

Stroud District Council's development control committee in November last year had made the diversion order.

But after local opposition it did not pursue the order by referring it to the environment secretary.

Mr Birts argued the council was legally obliged to make the referral so that the minister could make a final decision.

He argued that, under the 1980 Highways Act, Stroud council's function was to make a diversion order if it appeared "expedient" for Mr and Mrs Hargrave.

He said the alternative path was not "in the least inconvenient or less amenable to walkers, taking them only a short distance out of their way".

Douglas Edwards, for Stroud council, agreed the case had important general implications.

He argued that, rather than being under a duty to refer, the council had "a discretion" to take into account objections to a proposed path diversion.

See also:

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09 May 01 | Wales
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