Developer with planning permission constructing dwelling and garage over footpath – Council making order diverting footpath under section 257 of the Town and Country Planning Act 1990 – Inspector confirming order – Whether inspector entitled to confirm order – Application to quash decision allowed
Planning permission was granted in August 1996 for the construction of two dwellings and two garages on land in Blackthorn, which was in part traversed by a public footpath as a result of a misunderstanding as to the true line of the footpath. Work on the development started in December 1996. The council made an order, entitled Cherwell District Council Blackthorn FP No 6 Division Order 1997, under section 257 of the Town and Country Planning Act 1990 stopping up and diverting the footpath. The applicant objected. The inspector held a local public inquiry. Meanwhile, although the work on the garage had been substantially completed, the developer had demolished the part of the garage that was over the footpath. The inspector concluded it was appropriate to confirm the order.
The applicant applied under section 287 of the 1990 Act for the inspector’s decision to be quashed. By section 257 of the 1990 Act “a competent authority may by order authorise the stopping up or diversion of any footpath or bridleway if they are satisfied that it is necessary to do so in order to enable development to be carried out .. in accordance with planning permission . . .”. “Competent authority” was defined as “in the case of development authorised by planning permission, the local planning authority who granted permission . . .”. The applicant, relying on Ashby v Secretary of State for the Environment [1980] 1 WLR 673, contended that the power under section 257 of the 1990 Act ceased to be available to the Secretary of State as a matter of law once the relevant development had been substantiality completed, since it was no longer “necessary” to divert the footpath in order to enable the development to be carried out. It was submitted that even though part of the development had been demolished, it had been completed or substantially completed and, accordingly, the planning permission was spent and therefore section 257 was not applicable.
Held The application was allowed.
When a discrete and substantial part of a planning permission was completed in accordance with the permission, then that part of the permission was spent and, to knock down the works and rebuild them was not authorised by the planning permission. That conclusion was not inconsistent with the accepted principal that a permission for operational work continued until completed. Accordingly, the planning permission was spent when the corner of the house and garage were physically constructed and additionally, and consequently, the rebuilding of the wall could not be carried out under the planning permission. Therefore at the date of the public inquiry the requirements of section 257 had not been met and the inspector had not had power to confirm the council’s order.
George Laurence QC (instructed by JJ Pearlman, of Leeds) appeared for the appellant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
