Appellant constructing an access way onto major road — Whether road classified for purposes of planning control — Burden of proof — Appeal dismissed
The appellant occupied a caravan on a site under licence from the local authority. By a term of that licence, an access way was to be constructed to the site. The appellant proposed to construct such an access with an entrance onto a major road, which had a speed limit of 60mph. The local council served an enforcement notice on the ground that this would be in breach of planning control. The appellant appealed the notice.
The inspector allowed the appeal in part, but the real matter in issue was whether the development was one against which enforcement could properly be brought, inter alia, because the matter complained of did not constitute a breach of planning control. Although development would be permitted, under the terms of Part 5 of Schedule 2 to the Town and Country Planning General Development Order 1988, if it were required by the conditions of a site licence, it was not permitted under article 3 if it formed an access to an existing classified road. The appellant argued that the road in question was not classified for the purposes of the 1988 Order.
The inspector found, as matters of fact, that: (i) “in the eyes of the council”, the road was classified; (ii) the burden of proof was upon the appellant to demonstrate that a breach of planning control had not occurred; and (iii) it was therefore for the appellant to demonstrate that the road was not legally classified. The appellant maintained that the principle set out in Nelsovil Ltd v Minister of Housing and Local Government [1962] 1 WLR 404 could not extend to requiring an appellant to prove a negative, and that the local planning authority were required to establish that the road was legally classified.
Held: The appeal was dismissed.
In general terms, the inspector had been correct to hold that the onus of proof in an appeal was upon the appellant to demonstrate that he had not breached planning control. However, regard must be had to the ability of one party or another to obtain the evidence, and that depended upon the facts of the individual case.
Defining what constituted a classified road was difficult. Statutory definition was to be found in section 17(2) of the Ministry of Transport Act 1919, in the Local Government Act 1966, and in the Highways Act 1980 (of which section 12(1) was referred to in the 1988 Order). Taking all the various statutory provisions into account, it appeared that if the proposed road had been classified under the Local Government Act 1966, it would then be classified for the purposes of the 1988 Order.
In the instant case, although no documentary evidence could be found to prove absolutely that the road in question was classified, it was clear from the evidence adduced that, since 1967, the road had been treated as classified. A strong prima facie case could therefore be made that the road was classified and the inspector had been entitled so to find. His conclusion was justified by the evidence before him, and his approach to the problem had been correct.
Jonathan Clay and Johanna Boyd (instructed by DMH, of Brighton) appeared for the appellant; Nathalie Lieven and Tim Buley (instructed by the Treasury Solicitor) appeared for the first respondent; William Upton (instructed by the solicitor to Mid-Sussex District Council) appeared for the second respondents.
Vivienne Lane, barrister
