Planning permission — Condition relating to highways — Compliance with condition required section 278 agreement with highway authority — Whether highway authority entitled to refuse to enter into such an agreement
The
respondents, Powergen plc, appealed the refusal of planning permission by the
district council, as the local planning authority, for a supermarket and
associated facilities. The Secretary of State for the Environment, by his
inspector, allowed the appeal and granted planning permission subject to the
condition that Powergen plc did not use the site until highway works were
completed. The effect of that condition was to require Powergen plc to enter
into an agreement under section 278 of the Highways Act 1980 with the highway
authority. The inspector’s decision was not challenged under section 288 of the
Town and Country Planning Act 1990 so that the decision was final. The
appellant county council, as the highway authority, refused to enter into a
section 278 agreement with Powergen plc on the grounds that such highway works
were not in the public interest, these being the same criticisms put before the
inspector by the local planning authority and rejected by him. Powergen plc’s
challenge, to that decision contending that the county council’s refusal to
enter into the agreement was unlawful, unreasonable and perverse, was allowed
in the court below. The county council appealed.
The judge in
the court below was correct. Following a successful appeal by the developer the
relevant highway authority have no option but to co-operate in implementing the
planning permission by entering into a section 278 agreement. The Wednesbury
analysis of the case was preferred. It is not reasonable for a highway
authority, whose road safety objections have been fully heard and rejected on
appeal, then, quite inconsistently with the inspector’s independent factual
judgment on the issue, nevertheless to maintain their own original view. The
highway authority would have to raise a fresh objection sufficiently different
from their earlier one to admit a realistic prospect that, had they advanced it
before the Secretary of State on the planning appeal, it might, unlike the
earlier one, have prevailed. It cannot be right for a highway authority to
exercise what effectively amounts to a veto of the planning appeal process by
ultimately declining to enter into a section 278 agreement. The highway
authority should play a full part in the planning process and, in the event
that a conditional planning permission is granted, co-operate just like the
local planning authority themselves in the fulfilment of any relevant
conditions: see p68E.
to in the judgment
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997;
[1968] 2 WLR 924; [1968] 1 All ER 694, CA and HL
R v Secretary of State for the Home Department, ex parte Onibiyo
[1996] QB 768; [1996] 2 WLR 490; [1996] 2 All ER 901; sub nom Onibiyo v Secretary
of State for the Home Department [1996] Imm AR 370
Appeal to the
Court of Appeal
This was an
appeal by Warwickshire County Council against the decision of Forbes J, given
on November 20 1996, who allowed the application of Powergen plc, who sought
judicial review of the decision of Warwickshire County Council as highway
authority to enter into a section 278 agreement under the Highways Act 1980.
Supperstone QC (instructed by the solicitor to Warwickshire County Council)
appeared on behalf of the appellant council.
Hicks QC and Russell Harris (instructed by Wragge & Co, of Birmingham)
appeared on behalf of the respondent, Powergen plc.
following judgment was delivered.
SIMON BROWN
LJ: Highway authorities are the bodies primarily
charged with the responsibility of ensuring that our roads are reasonably safe:
safely designed, safely regulated and safely maintained. Ample powers are given
to them for this purpose, both under the Highways Act 1980 and the Road Traffic
Regulations Act 1984.
Section 278 of
the Highways Act 1980, one of a group of sections in Part XIII under the
heading ‘Financial Provisions’, allows highway authorities to enter into
agreements with developers for the execution of highway works at the
developer’s expense. In its present form (substituted by section 23 of the New
Roads and Street Works Act 1991 for the section originally enacted) it states,
so far as material:
Agreements
as to execution of works.
278.– (1) A highway authority may, if they are satisfied it will be of
benefit to the public, enter into an agreement with any person —
(a) for the execution by the authority of any
works which the authority are or may be authorised to execute, or
(b) for the execution by the authority of such
works incorporating particular modifications, additions or features, or at a
particular time or in a particular manner,
on terms that
that person pays the whole or such part of the cost of the works as may be
specified in or determined in accordance with the agreement.
There can be
no doubt that ordinarily speaking a highway authority will not be ‘satisfied it
would be of benefit to the public’ to enter into a section 278 agreement unless
they are satisfied, inter alia, about the road
they have no discretion to enter into an agreement. What, however, is the
position when the highway authority have objected to the grant of planning
permission for a particular development on road safety grounds and then, on
appeal to the Secretary of State for the Environment, that objection has been
fully heard and resolved in the developer’s favour with the grant of a
conditional planning permission? Are the highway authority then still entitled
(perhaps even bound, assuming they remain of their original view) to maintain
their objection and to refuse to enter into a section 278 agreement, even
though such refusal will prevent the developer from satisfying the condition
and implementing his permission? That is the crucial issue now before us. It is
formulated by Mr Michael Supperstone QC, for the appellant highway authority,
thus: what is the proper legal relationship between the role of a planning
authority in determining whether or not to grant planning permission, and, if
so, subject to what conditions if any, and the role of a highway authority in
determining whether or not to enter into a section 278 agreement? It is, he
submits, a question of fundamental importance to all planning authorities and
highway authorities throughout the country.
With that
brief introduction let me turn now to the facts of the case which I shall set
out altogether more shortly than did the judge below.
In June and
September 1994 Powergen applied to Warwick District Council (the district
council) for outline planning permission for the development of Powergen’s site
at the former Avon Power Station in Emscote Road, Warwick. The proposed
development was for a supermarket, associated car parking for 500 cars, petrol
filling station and suitable means of access to the site from Emscote Road. The
proposed access and highway works were fully detailed and illustrated on
drawings which accompanied the applications; they were not reserved matters. In
summary they comprised the following main elements:
(i) widening
the highway and a bridge across the Grand Union Canal to provide a site access
junction;
(ii)
installing a full traffic signal control junction;
(iii)
providing a right hand turning lane and pedestrian crossings.
As part of
their consideration of the planning applications, the district council, in
compliance with article 18 of the Town and Country Planning (General
Development) Order 1988, were required to consult with the appellant county
council, as the local highway authority, with regard to the proposed highway
works. Having done so, on November 1 1994, the district council refused the
September 1994 application. (They failed to determine the June 1994 application
within the prescribed time-limit. Nothing, however, turns on this: it was a
duplicate application and its non-determination gave rise to an identical right
of appeal. It is accordingly convenient to treat there as having been but a
single application.) The first of the four reasons given for refusing planning
permission was:
The District
Planning Authority, in consultation with the County Highway
insufficient forward visibility over the Canal bridge and therefore stopping
sight distance requirements are not met through the proposed junction. The
proposal would therefore be detrimental to the interests of highway safety on
this busy section of the A445.
Powergen duly
appealed under section 78 of the Town and Country Planning Act 1990 whereupon
the Secretary of State appointed an inspector to hold a local inquiry and to
determine the appeal on his behalf.
In describing
the development proposal in his decision letter of January 11 1995 the
inspector noted that:
Although the
appeals relate to applications for outline planning permission the details of
the proposed access to the site are not a reserved matter and I have
accordingly taken account of them.
As to whether
planning permission should be granted he said:
I consider
the outcome of the appeals … turns on whether the proposals for access to the
site are satisfactory.
Among the
witnesses called by the district council at the three-day public inquiry was Mr
Winch, one of the appellant’s senior highway contract engineers. He gave
detailed evidence about the road safety issue and fully explained the county
council’s reasons for concluding that the proposed access and highway works
were unsatisfactory in road safety terms. Opposing expert evidence was given on
behalf of Powergen. Having reviewed all this evidence and the rival submissions
at some length in his decision letter the inspector then reached the following
main conclusions:
The question
is then whether the proposed signal-control junction offers in this case an
adequate degree of traffic safety. (para 27)
In all the
circumstances I am not persuaded that the proposed signal-control junction
would present such a threat to road safety as to justify dismissing the
appeals. (para 28)
In sum, I
accept on the traffic issue that adequate provision would be made for vehicular
and pedestrian movement in relation to the benefits to be derived from the
reclamation of the site. (para 29)
The inspector
accordingly allowed the appeals and granted outline planning permission subject
to a number of conditions of which one only is presently relevant.
8. The
development hereby permitted shall not come into use before the bridge across
the Grand Union Canal shall have been widened sufficiently to enable access to
the site to be provided with a traffic signal installation in accordance with
[a particular drawing] the adjustment of carriageway levels on the bridge
approaches and the provision of pedestrian guard railings.
To satisfy
condition 8 Powergen obviously need the appellants to carry out the specified
highway works which, for practical purposes, requires also that they now enter
into a section 278 agreement. By a letter dated February 3 1995 such an
agreement was sought. It was refused. On June 15 1995 the relevant committee of
the county council resolved that they ‘still’ considered the proposed access
arrangements to be unsafe. (The county council have accepted throughout that
their refusal is based on the self-same objections as underlay the district
council’s original refusal of planning permission and which Powergen then
succeeded in overcoming on the planning appeal.) Powergen then sought to
resolve the matter by negotiation and in the event put forward two further
schemes. On August 24 1995, however, these in turn were rejected. Hence this
judicial review application, a challenge to the highway authority’s refusal to
enter into a section 278 agreement with Powergen such as will enable them to
implement the planning permission granted on appeal. That challenge succeeded
before Forbes J on November 20 1996. The highway authority now appeal to this
court.
The essence of
Forbes J’s judgment is, I think, to be found in this passage, at p70E:
It is common
ground that the new section 278 was intended to fit into and play its part in
the overall legislative system for the controlled development of land through
the planning process and I accept that section 278 must be interpreted
accordingly. In my opinion, where the benefit to the public of the proposed
highway works, in respect of which an agreement with the highway authority is
sought under section 278 of the 1980 Act, has been fully considered and
determined in the planning process, because the highway works in question form
a detailed and related aspect of the application for development of land in
respect of which planning consent has been properly obtained through that
planning process, then the highway authority’s discretion whether to enter into
the section 278 agreement will necessarily be somewhat limited. In such a case,
the matters remaining to be considered by the highway authority in the proper
exercise of their discretion under section 278, are likely to be relatively
minor in nature. I agree with Mr Hicks that the proper exercise of that
discretion by the highway authority will not embrace a further and separate
reconsideration of the benefit to the public of the highway works in question
solely by reference to the same reasons as those which had already been
considered and determined in the planning process. If such a reconsideration by
the highway authority were to be a proper exercise of their discretion under
section 278, then that would largely frustrate the scheme of the legislation of
which section 278 is conceded to be part. This would be particularly so where,
as in the present case, there has been no challenge to the validity of the
relevant planning decision pursuant to section 288 of the Town and Country
Planning Act 1990, notwithstanding the highway authority’s right to bring such
a challenge under that section.
This last
sentence refers to the fact that even though the highway authority here were
not separately represented as an objector on Powergen’s appeal, they were
clearly a ‘person aggrieved’ and thus entitled, were the decision unreasonable
or otherwise erroneous in point
Without such a challenge, section 284 provides that the decision on the section
78 appeal ‘shall not be questioned in any legal proceedings whatsoever’.
It is the
appellants’ case, however, that they neither need nor seek to question this
grant of planning permission. It is, they contend, one thing to grant such a
permission, quite another to suggest that it operates as an implied direction
to the county council then to enter into a section 278 agreement to enable it
to be implemented. The planning permission, submits Mr Supperstone, implies
only that no valid planning grounds exist for refusing permission. The question
thereafter arising for the highway authority is, he maintains, a different one.
They must still ask: is this development to be regarded as a benefit to the
public? That involves the county council exercising what throughout his
argument Mr Supperstone repeatedly called ‘an independent discretion’ whether
or not to enter into the proposed section 278 agreement.
The strength
of Mr Supperstone’s argument appears to lie in this: that on its face section
278 requires the highway authority themselves to be satisfied that the proposed
roadworks would be of benefit to the public, there being no provision under the
legislation for the Secretary of State or anyone else to direct that they be
thus satisfied or otherwise to require them to exercise their discretion to
enter into an agreement with the developer. Its weakness, however, is that it
would leave the highway authority able to override the planning process
notwithstanding: (a) that road safety considerations are clearly material to
the determination of planning applications — see for example paras 2.11 and 6.1
of PPG 13 and, indeed, article 18 of the general development order; and (b)
that whereas there is ample scope on a section 78 appeal for the Secretary of
State to hear and determine a factual dispute between the developer and the
highway authority on road safety issues, no such possibility arises if the
highway authority refuse to enter into a section 278 agreement.
It was
essentially because Forbes J found it unacceptable that the housing authority
should be able to defeat the planning process in this way that, in the passage
already cited from his judgment, he held that where, as here, a conditional
planning permission is granted on appeal, ‘the highway authority’s discretion
whether to enter into the section 278 agreement will necessarily be somewhat
limited.’ He then turned at the end of his judgment to consider Powergen’s
challenge in Wednesbury terms, at p71C:
In this case
there had been a dispute as to the balance of the public interest with regard
to the proposed development. The adequacy of the access arrangements and the
related highway works was one factor in that balance. In the course of the
planning process, the county council as highway authority argued that, because
of the lack of forward visibility, the balance of public interest was against
the proposed development for road safety reasons. The dispute was fully argued
at the planning appeal and determined by the Secretary of State by his duly
appointed inspector. The inspector’s conclusions were clear and were not
challenged pursuant to
Having regard to the terms of Section 284 of the 1990 Act, I accept Mr Hicks’
submission that the inspector’s conclusions should be treated as both
reasonable and final. The present proceedings are not the place to reconsider
the merits of the foregoing dispute. Since the development proposals as a whole
were found to be in the public interest, so too were the detailed highway works
which formed a necessary and related part of those proposals. In those
circumstances, I accept Mr Hicks’ submission that no reasonable highway
authority would, on the sole basis of the same arguments as to road safety
which had been fully considered and determined in the planning process, refuse
to enter into any necessary section 278 agreement on the grounds that to do so
was not a benefit to the public, thereby preventing the development from
proceeding. I have therefore come to the conclusion that the decision of the
county council in this case to refuse to enter into the section 278 agreement
in question is both perverse and unreasonable in the Wednesbury sense.
As Mr Hicks succinctly put it, it cannot be reasonable for the highway
authority to allow a decision of the Secretary of State to be implemented only
if it happens to agree with that decision.
There was some
debate before us whether that conclusion of Wednesbury irrationality was
freestanding of the judge’s earlier view based on the scheme of the planning
legislation as a whole. To my mind it was not: in truth there is here but one
issue: who, as between the Secretary of State (or inspector) on appeal and the
highway authority, is to have the last word in deciding a road safety issue of
this nature?
I have reached
the clear conclusion that the judge below came to the right answer: that
following a successful appeal by the developer the relevant highway authority have
no option but to co-operate in implementing the planning permission by entering
into a section 278 agreement. Although both the judgment below and the
arguments before us focused principally upon the scheme of the legislation and
whether the highway authority’s approach to their section 278 discretion
thwarted the policy and objects of the two Acts here in question: see, for
example, Padfield v Minister of Agriculture, Fisheries and Food
[1968] AC 997; I for my part prefer the broader Wednesbury analysis of
the case. Indeed, so far from this appeal raising, as Mr Supperstone submitted,
‘a short point of statutory construction’, I see it rather as raising this
simple question: is it reasonable for a highway authority, whose road safety
objections have been fully heard and rejected on appeal, then, quite
inconsistently with the inspector’s independent factual judgment on the issue,
nevertheless to maintain their own original view? To my mind there can be but
one answer to that question: a categoric ‘no’. That answer, I should make
plain, I arrive at less by reference to any general question regarding the
proper legal relationship between planning authorities and highway authorities
upon road safety issues than in the light of these basic considerations:
1. The site
access and associated highway works here, together with the road safety
problems which they raised, were (a) central (indeed critical) to this
particular planning application, and (b) considered in full detail rather than
left to be dealt with as reserved matters.
2. This
planning permission was granted following appeal to the Secretary of State and
not merely by the local planning authority themselves. In the perhaps unlikely
event that a local planning authority, having consulted with the highway
authority under the provisions of article 18 of the GDO, nevertheless in the
face of road safety objections grant a conditional planning permission of the
kind granted by the inspector here, it seems to me less than self-evident that
the highway authority would thereby become obliged to co-operate in its
implementation by entering into a section 278 agreement. True, article 12 of
the 1977 GDO, by which a local highway authority could give directions
restricting the grant of planning permission by a local planning authority in
this kind of cases, was repealed by the 1988 GDO, but it does not follow that
the local planning authority thereafter in turn became able to dictate the
highway authority’s course.
3. There were
no new facts or changed circumstances whatsoever following the inspector’s
determination of this appeal. The highway authority’s continued refusal was
based upon the identical considerations that their witness had relied upon in
seeking to sustain the planning objection before the inspector. Quite what
change of circumstances would entitle a highway authority in this sort of case
to withhold their co-operation after an appeal it is, of course, impossible to
lay down in advance. Some help, however, may be found in Sir Thomas Bingham
MR’s approach in Onibiyo v Secretary of State for the Home Department
[1996] Imm AR 370 to the very different question of what constitutes a
fresh asylum claim:
The acid test
must always be whether, comparing the new claim with that earlier rejected, and
excluding material on which the claimant could reasonably have been expected to
rely in the earlier claim, the new claim is sufficiently different from the
earlier claim to admit of a realistic prospect that a favourable view could be
taken of the new claim despite the unfavourable conclusion reached on the
earlier claim.
Adapting that
to the present planning context, the highway authority would have to raise a
fresh objection sufficiently different from their earlier one to admit of a
realistic prospect that, had they advanced it before the Secretary of State on
the planning appeal, it might, unlike the earlier one, have prevailed. Whether
or not that was indeed the situation would in the first instance be a question
for the highway authority themselves (just as initially it is for the Secretary
of State to decide whether a fresh asylum claim has been made). Such decisions
are, of course, in appropriate cases susceptible to challenge by way of
judicial review. While, of course, no such difficulty arises in the present case,
it perhaps highlights this, that if Mr Supperstone is right in his main
argument, then it would be perfectly open to a highway authority to ignore the
planning appeal process entirely, to withhold their witnesses and co-operation
when the road safety implications of the development scheme are being debated
before the inspector, and then simply to exercise what effectively amounts to a
be right. Rather the highway authority should play their full part in the
planning process and, in the event that a conditional planning permission is
granted, co-operate just like the local planning authority themselves in the
fulfilment of any relevant conditions.
For these
reasons I would reject Mr Supperstone’s central argument that, even following
the grant of planning permission on appeal, the highway authority retain ‘an
independent discretion’ to refuse to enter into the requisite section 278
agreement, by which I think he must mean that they remain reasonably entitled
to adhere to and act upon their original view that the public would not benefit
from this development because of the highway dangers it would create. I believe
on the contrary that the inspector’s conclusion on that issue, because of its
independence and because of the process by which it is arrived at, necessarily
becomes the only properly tenable view on the issue of road safety and thus is
determinative of the public benefit. This is not, I should perhaps note, to
overlook para 35 of the decision letter, a standard rubric stating that:
This letter
does not convey any approval or consent which may be required under any
enactment, bye-law, order or regulation other than s 57 of the Town and Country
Planning Act 1990.
Section 57, of
course, is the basic provision requiring that development has planning
permission. Accepting, as I do, that the highway authority’s ‘approval or
consent’ is still required before condition 8 can be satisfied, my judgment
comes simply to this: such approval or consent cannot in the present
circumstances properly be withheld. Para 35 is in substance directed to quite
other consents, under various licensing acts, building regulations and the
like.
I would
accordingly dismiss this appeal.
OTTON LJ: I agree.
MUMMERY LJ: I also agree.
Appeal
dismissed with costs; leave to appeal to the House of Lords refused.
