Property developers — Planning permission for houses — Bridleway crossing plots — Diversion order — Objection — Diversion confirmed — Application to quash making of diversion order — High Court holding Secretary of State had not erred in law — Decision reasonable — Application dismissed — Court of Appeal upholding that decision.
In March 1988 Tarmac obtained planning permission to erect 37 houses on land encompassing the appeal site. After construction commenced the local authority informed Tarmac that a bridleway crossed three of the proposed dwelling plots. The council made a diversion order at the request of Tarmac, but objections were raised and an injunction served to prevent further work on the three plots. An inquiry was held and a modified diversion order was confirmed. Planning permission was granted for works needed to implement the diversion, but the High Court quashed the diversion order in October 1991. The council refused to make a further diversion order and Tarmac requested the Secretary of State for the Environment to divert the bridleway under powers given by section 247 of the Town and Country Planning Act 1990.
The Secretary of State declined on the grounds that exceptional circumstances did not exist. Following the Secretary of State’s refusal to divert the bridleway, Tarmac submitted an application to permit the erection of the three dwellings on the plots affected by the bridleway. On refusal Tarmac appealed to the Secretary of State who proposed to make a diversion order under section 247 and 253 of the 1990 Act in accordance with his powers in Circular 2/93 — Public Rights of Way. An application by C, who was the bridleway users’ representative, to quash the making of the diversion order was refused: see [1995] EGCS 43. The applicant also argued that there would be valuable trees lost if the order were confirmed.
Held The applicant’s appeal was dismissed.
1. In his decision letter the Secretary of State had specifically addressed the way he had approached the policy in para 17 of Annex A of Circular 2/93. The judge was entitled to find that there was no fault with his understanding or application of that policy.
2. Once it was decided to use the section 253 procedure, the sole questions were whether he was satisfied that the discretion was necessary to enable the permitted development to be carried out; and if so, whether the section 247 order should be made.
3. Section 247 empowered the Secretary of State to make a diversion order if he thought it was necessary to enable the development to be carried out in accordance with the grant of planning permission. It was not for the Secretary of State acting under section 247 to postulate other developments if he was satisfied that diversion was necessary to allow the permitted development of the three houses to be carried out.
4. The Secretary of State was entitled to conclude that the loss of trees to divert the bridleway was not sufficiently determined to the character and amenity of the area to justify refusing the appeal nor to justify refusing to confirm the diversion order. That was a reasonable judgment which he was entitled to make.
Nigel Ley (instructed by JE Armah & Co) appeared for the applicant; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the local planning authority, Woodspring District Council, did not appear and were not represented; Charles George QC (instructed by the solicitor to Tarmac Housing Division) appeared for Tarmac.
