Town and country planning – Stopping up order – Condition – Inspector appointed by the defendant secretary of state refusing to confirm stopping up order under section 257 of Town and Country Planning Act 1990 – Claimant applying for judicial review – Whether inspector correctly applying “necessity” and “merits” tests as prerequisite to confirming order – Application granted
The first interested party made an order under section 257 of the Town and Country Planning Act 1990 to enable development to be carried out under two planning permissions granted for the construction of up to 142 houses by the second interested party. The permissions were granted subject to a negative “Grampian” condition which prevented more than 32 houses being constructed until a footpath diversion order had been made and confirmed in respect of a footpath which ran close to the development site and crossed railway tracks: see Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633.
By the time the public inquiry opened, the second interested party had applied under section 73 of the 1990 Act for the grant of a fresh planning permission with amendments to the condition to provide for a housing restriction increase to 64 houses, with the lifting of the restriction if the stopping up order was made and confirmed or the defendant secretary of state decided that the order should not be confirmed. The first interested party granted permission for the development of 142 houses subject to the revised condition. Shortly before the public inquiry opened, two objectors wrote to the planning inspectorate contending that, in view of the terms in which fresh planning permission had been granted, it could no longer be said that the stopping up was “necessary” to enable the development to go ahead and therefore the order should be treated as outwith the powers of the defendant.
The inspector decided that that issue should be determined at the outset of the inquiry and concluded that the revised condition permitted the whole development, irrespective of whether the order was confirmed, and was therefore ineffective. He concluded that it was not legally possible for the order to be confirmed because the fresh permission allowed the whole development of 142 homes to be carried out irrespective of whether the order was confirmed. The claimant, which had raised safety concerns justifying the stopping up and diversion of the existing footpath applied for judicial review.
Held: The application was granted.
(1) The secretary of state could not make an order under section 247 of the 1990 Act or confirm an order under section 257 unless satisfied that a planning permission existed for development and that it was necessary to authorise the stopping up (or diversion) of the public right of way by the order to enable that development to take place in accordance with that permission. Necessity had to be interpreted in accordance with the plans and conditions of a planning permission which allowed the development to be carried out. The word “necessary” meant “required in the circumstances of the case”. Those circumstances had to include the relevant terms of the planning permission (“the necessity test”).
Even if the secretary of state was so satisfied, he had a discretion whether to confirm the order and might refuse to do so, taking into account any significant disadvantages or losses flowing directly from the stopping up order which had been raised, either for the public generally or for those individuals whose actionable rights of access would be extinguished by the order. In such a case the secretary of state also had to take into account any countervailing advantages to the public or those individuals, along with the planning benefits of, and the degree of importance attaching to, the development and decide whether they were of such significance or seriousness that he should refuse to make the order (“the merits test”).
Although the satisfaction of the necessity test was a pre-requisite to the exercise of the power to make (under section 257) and to confirm (under section 259) an order, where there were relevant objections engaging the merits test, the satisfaction of that further test was also a pre-requisite for the order to be made and confirmed (or for an order to be made under sections 247 and 252): Vasiliou v Secretary of State for Transport (1991) 61 P&CR 507 applied.
(2) An order under sections 247 or 257 might be made, not only where a planning permission allowed development to be physically carried out on the route of an existing footpath, but also where the only necessity for a stopping-up order arose from a condition in a planning permission which restricted the whole or some part of the development authorised unless and until that stopping up was first authorised by order and was then carried out. In such cases it was the language by which the Grampian restriction was expressed that satisfied the necessity test. The order was necessary to overcome that negative restriction. In the case of a Grampian condition relating to the stopping up of a highway, it was not the mere existence of the permission which satisfied the necessity test, but the terms of the particular condition. Hence, the correct construction of the condition, an objective question of law, was necessary for the necessity test to be applied correctly. In this case, the inspector erred in law by concluding that the necessity test was not, or could not, be satisfied. Given that that was the sole basis for his refusal to confirm the order, that error of law was sufficient to require the decision to be quashed and reconsidered.
(3) The inspector’s interpretation failed to recognise that it was a Grampian restriction which not only satisfied the necessity test under section 257 but also engaged the merits test, and imposed the further protection that the diversion had to be brought into effect before the residual 78 homes might be occupied. If the stopping up order passed the merits test, it followed that the confirmation of the order was still necessary (and its subsequent implementation) to enable the entire development to proceed. Both the necessity test and the merits test were considered alongside each other. Because of that misinterpretation of the condition and its legal relationship with the use of the power in section 257, the inspector brought the inquiry abruptly to a halt and did not embark upon any hearing or determination of the merits test in Vasiliou as he ought to have done.
Per curiam: The determination of a preliminary issue without receiving all the evidence and submissions in the case was handled with particular care. It was necessary to consider precisely what the preliminary issue should be and to draft the terms of that issue in advance of the hearing. Nothing resembling that approach had occurred in the present case. Good practice was not followed. It would be advisable for the inspectorate to consider giving or reviewing the guidance to inspectors on the circumstances in which it was appropriate for a preliminary issue to be determined and the procedure to be followed, even though the procedure might only be appropriate in a limited range of cases.
Juan Lopez (instructed by Bond Dickinson LLP) appeared for the claimant; Tim Buley (instructed by the Government Legal Department) appeared for the defendant; Jonathan Easton (instructed by Shoosmiths LLP) appeared for the second interested party.
Eileen O’Grady, barrister
