Respondent making stopping-up order – Applicant seeking to quash decision – Whether order conflicting with planning permission – Section 247 of Town and Country Planning Act 1990 – Application dismissed
The second respondent (Hanson) worked an area of limestone quarry in Somerset under a permission granted by an interim development order (IDO). In July 1996 Somerset County Council granted planning permission for the winning and working of minerals at the quarry, covering both the IDO area and a 35ha extension. The two areas were separated by Chantry Lane. Following the grant of permission, Hanson applied for an order to stop up Chantry Lane and adjoining footpaths. The Secretary of State’s refusal of the application was quashed and, on a redetermination of the matter, an inspector recommended that the stopping-up order be made. The proposed order made provision for a new bridleway.
In October 1999 the Secretary of State accepted the inspector’s recommendations and made a stopping up order under section 247 of the Town and Country Planning Act 1990. Before the making of such an order, section 247(1) required the Secretary of State to be satisfied that it was necessary to do so in order to enable development to be carried out “in accordance with a planning permission granted under Part III”. It was not in dispute that the requirements of section 247(1) had been met and that the general approach of the Secretary of State accorded with the principles in Vasiliou v Secretary of State [1991] 1 PLR 39.
The applicant sought to quash the Secretary of State’s decision on two grounds. The first related to the exercise of the Secretary of State’s discretion under section 247(2) of the Act in making provision for the new bridleway. It was submitted that the Secretary of State had no power to make such an order because the location of the new bridleway conflicted with the 1996 permission and prevented its implementation. Second, the appellant contended that the Secretary of State erred in his assessment of the advantages flowing from the 1996 permission and in his balancing of the advantages and disadvantages. The applicant argued that modern conditions could have been imposed on the IDO permission but that the Secretary of State simply found that “while it may be feasible… to revise the IDO permission on the existing quarry without a new permission, this consideration does not detract substantially from the advantages” of the 1996 planning permission. It was submitted that such an approach was insufficient and a detailed examination was needed to determine the limited advantages that the 1996 permission had over the IDO permission.
Held: The application was dismissed.
There was no requirement in section 247 of the Act that the new bridleway provided for under section 247(2) should be in accordance with the planning permission. Section 247(2) only required that the provision of a new highway should appear “necessary or expedient” to the Secretary of State. The exercise of his discretion under section 247(2) was not conditioned by the words “in accordance with the planning permission” contained in section 247(1) of the Act. In any event, the location of the bridleway did not necessarily conflict with the planning permission.
The applicant had ignored the main point of the 1996 permission, the essential advantage of which was that it secured the release of major reserves of stone in the extension area, while at the same time regulating the position in that area and the IDO area by a single act. The Secretary of State was entitled to take the view that he did. Nor was it necessary for the Secretary of State to consider in any further detail what conditions might have been imposed on the IDO permission. The evidence at the inquiry did not go into the matter in any detail and the circumstances did not call for any fuller investigation of it.
David Wolfe (instructed by The Public Interest Lawyers, of Birmingham) appeared for the applicant; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; Richard Drabble QC (instructed by Mills & Reeve, of Cambridge) appeared for the second respondent.
Sarah Addenbrooke, barrister
