Section 247 of the Town & Country Planning Act 1990 enables the Secretary of State or London borough councils to authorise the stopping-up or diversion of a highway to enable building development. These powers can also be used in relation to footpaths and bridleways. The development must either have planning permission, including permission granted by a development order, enterprise zone scheme or simplified planning zone scheme, or be carried by a government department.
Under section 253 of the 1990 Act, a draft stopping-up order can be published in advance of the grant of planning permission where the application is referred to the Secretary of State, under section 77 or as an appeal to him under section 78 of the 1990 Act. Thus, the two matters can be considered concurrently.
A body of case law confirms which matters the Secretary of State may properly take into account when considering making such an order, and that planning considerations are relevant only when the local planning authority or the Secretary of State are considering the application for planning permission.
In Clifton and Hotwells Improvement Society v Secretary of State for Transport [2005] EWHC 2254; [2005] PLSCS 180 an application was made to quash a decision to make a stopping-up order, on the ground that the development itself would create numerous dangers to pedestrians and cyclists and also that the proposed pedestrian crossing did not accord with the Department of Transport’s (DoT) guidelines for visibility splays and stopping distances. The planning inspector had considered that any disadvantages arising from the stopping-up orders were not sufficiently serious as to outweigh the advantages in making the order, and recommended allowing the development to proceed. This recommendation was accepted by the Secretary of State.
The court held that the Secretary of State was entitled to rely on the inspector’s report where the advice was clear and neither irrational nor unlawful. Although the traffic expert had concluded that visibility fell short of DoT standards, it did not compromise public safety and did not outweigh the advantages that would flow from the implementation of the planning permission.
In Vasiliou v Secretary of State for Transport [1991] 1 PLR 39, the Court of Appeal considered whether planning objections must be disregarded by the Secretary of State when confirming an order. In that instance, the effect of the stopping-up order on the appellant’s trade was found by the Secretary of State not to be a material consideration, but a matter to be taken into account by the local planning authority on considering the application for planning permission. The Court of Appeal said, however, that effect on trade was not a proper planning consideration and therefore the Secretary of State was not entitled to ignore the impact of the stopping-up order on the appellant’s trade. In the case of R (on the application of Batchelor Enterprises Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1293, the Secretary of State concluded that a stopping-up order should not be made because of an increased use of the remaining part of the highway, leading to sub-standard visibility for drivers at the junction, which would result in a serious degree of risk to road users. The Court of Appeal rejected the submission that highway matters would have been taken into account in the planning proceedings and should not be reopened, holding that the power to make the order is discretionary and, in the making of the order, the Secretary of State’s concern must be with the consequences for road safety.
What constitute valid considerations in relation to a planning application and what are valid considerations in an application for a stopping-up order is difficult to define. What should be remembered is that the Secretary of State may take into account matters such as the effect on road safety in considering making the order, but is entitled to conclude that these, balanced against the advantages of the grant of planning permission, are outweighed provided the decision is not irrational.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
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Section 247 of the Town & Country Planning Act 1990 enables the Secretary of State or London borough councils to authorise the stopping-up or diversion of a highway to enable building development. These powers can also be used in relation to footpaths and bridleways. The development must either have planning permission, including permission granted by a development order, enterprise zone scheme or simplified planning zone scheme, or be carried by a government department.
Under section 253 of the 1990 Act, a draft stopping-up order can be published in advance of the grant of planning permission where the application is referred to the Secretary of State, under section 77 or as an appeal to him under section 78 of the 1990 Act. Thus, the two matters can be considered concurrently.
A body of case law confirms which matters the Secretary of State may properly take into account when considering making such an order, and that planning considerations are relevant only when the local planning authority or the Secretary of State are considering the application for planning permission.
In Clifton and Hotwells Improvement Society v Secretary of State for Transport [2005] EWHC 2254; [2005] PLSCS 180 an application was made to quash a decision to make a stopping-up order, on the ground that the development itself would create numerous dangers to pedestrians and cyclists and also that the proposed pedestrian crossing did not accord with the Department of Transport’s (DoT) guidelines for visibility splays and stopping distances. The planning inspector had considered that any disadvantages arising from the stopping-up orders were not sufficiently serious as to outweigh the advantages in making the order, and recommended allowing the development to proceed. This recommendation was accepted by the Secretary of State.
The court held that the Secretary of State was entitled to rely on the inspector’s report where the advice was clear and neither irrational nor unlawful. Although the traffic expert had concluded that visibility fell short of DoT standards, it did not compromise public safety and did not outweigh the advantages that would flow from the implementation of the planning permission.
In Vasiliou v Secretary of State for Transport [1991] 1 PLR 39, the Court of Appeal considered whether planning objections must be disregarded by the Secretary of State when confirming an order. In that instance, the effect of the stopping-up order on the appellant’s trade was found by the Secretary of State not to be a material consideration, but a matter to be taken into account by the local planning authority on considering the application for planning permission. The Court of Appeal said, however, that effect on trade was not a proper planning consideration and therefore the Secretary of State was not entitled to ignore the impact of the stopping-up order on the appellant’s trade. In the case of R (on the application of Batchelor Enterprises Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1293, the Secretary of State concluded that a stopping-up order should not be made because of an increased use of the remaining part of the highway, leading to sub-standard visibility for drivers at the junction, which would result in a serious degree of risk to road users. The Court of Appeal rejected the submission that highway matters would have been taken into account in the planning proceedings and should not be reopened, holding that the power to make the order is discretionary and, in the making of the order, the Secretary of State’s concern must be with the consequences for road safety.
What constitute valid considerations in relation to a planning application and what are valid considerations in an application for a stopping-up order is difficult to define. What should be remembered is that the Secretary of State may take into account matters such as the effect on road safety in considering making the order, but is entitled to conclude that these, balanced against the advantages of the grant of planning permission, are outweighed provided the decision is not irrational.
Gill Castorina is an associate at
