Planning proposals refused for highway considerations – Poor visibility at highway junction with private access road – Highway authority refusing applicant’s request to serve section 79 notice requiring owners of land adjoining junction to cut back hedgerow – Whether desire not to take sides on a planning issue infected decision with an immaterial non-highway consideration
Access to the public highway from the applicant’s property, White Herons Farm, near St Leonard’s Forest, was afforded by an unmade road which was also used by two other households, visitors to the forest and Forestry Commission vehicles. In 1987 the applicant lost an appeal against four enforcement notices issued by the district council prohibiting certain commercial uses of the farm, the inspector holding that poor visibility conditions at the junction of the unmade road and the highway would present an unacceptable hazard if the uses were permitted. In 1988 the respondent highway authority withdrew their highway objections and served a notice under section 79 of the Highways Act 1980 requiring landowners adjoining the junction (the objecting owners) to trim certain hedges alleged to obstruct the view of highway users. At or about the same time the district authority granted to the appellant a temporary two year permission to use the farm for certain commercial purposes. In September 1989 the respondents withdrew the notice following a complaint by the objecting owners to the ombudsman about the manner in which it had been issued. On expiry of the temporary permission the applicant made a further application which was refused on highway grounds. In January 1994 the applicant requested the respondents without success to serve a fresh section 79 notice on the objecting owners. In February 1995 the defendant lost an appeal against further enforcement notices served by the district council in the previous year, the inspector finding that the junction was “very dangerous” on account of poor visibility. By solicitors’ letter dated June 21 1995 the applicant made a further request for the issue of a section 79 notice, citing the inspector’s findings as evidence in support. The respondents, by letter dated June 28 1995, refused the request reiterating reasons given in earlier correspondence namely: that given the many busier junctions in need of remedial work the junction in question, which involved a private access road, was not high on their list of priorities; and that the power given by section 79 could not be used to overcome highway objections to development proposals. The appellant sought judicial review of that refusal contending that the tenor of their last letter demonstrated that the respondents had: (i) failed to take into account the new evidence afforded by the February decision letter; (ii) disregarded the danger that existed at the time of the last request; (iii) proceeded upon an immaterial consideration namely a desire not to take sides on the development issue between the applicant and the objecting owners.
Held The application was dismissed.
1. Having expressed their refusal in terms of current highway priorities, there was no need for the respondents to state expressly that they had considered the latest evidence of the actual state of the junction.
2. In referring to the applicant’s plans the respondents were making clear that they were eschewing what would otherwise be an improper consideration.
Robert Douglas White (instructed by Burstows, of Crawley) appeared for the applicant; Roger McCarthy QC (instructed by the solicitor to West Sussex County Council) appeared for the respondents.
