In R (on the application of Network Rail Infrastructure Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 2259 (Admin), Holgate, J quashed an inspector’s decision not to confirm a stopping up order on the grounds that changes to the underlying planning permission had not rendered it unnecessary.
Planning permission was granted for housing development, subject to a condition restricting occupation until a diversion order relating to a path crossing railway tracks – outside the development site – was made and confirmed. The condition required the order to: stop up the footpath (to prevent access to the crossing from the site); stop up other routes; and deliver an alternative route. The authority made the order under section 257 of the Town and County Planning Act 1990, and the secretary of state held a public inquiry to consider objections (and decide whether the order was “necessary… in order to enable development to be carried out in accordance with planning permission” (under section 257(1)(a)) and merited (Vasiliou v Secretary of State for Transport (1991) 61 P&CR 507).
The developer then secured permission, before the inquiry, with a revised condition (increasing the occupation limit and, alternatively, disengaging the restriction altogether where the secretary of state refused to confirm the order). Objectors claimed that the order was not “necessary” (and so outside section 257) because development could now proceed if the order was rejected and because the development itself was not on the relevant footpath. The inspector disposed of the whole inquiry on the basis of that preliminary issue, rather than reserving the position on the interpretation of the condition and hearing evidence on the merits of the order.
Holgate J allowed the claim. The preliminary issue should have been defined earlier, with written submissions before the inquiry. The inspector should have sought to give effect to the revised condition as far as legitimately possible. Necessity can arise from “the terms of the permission and not merely the existence of the permission” – the effect of the condition rather than the location of the development was what mattered. The inspector misinterpreted its effect. It allowed the restriction to fall away where the claimant’s safety concerns were found (separately, on the merits, in line with Vasilou) not to justify the stopping up and diversion of the existing footpath. It therefore did not render the order incapable of confirmation. Reading it properly, the restriction continued to make the order necessary until at least the outcome of the merits test was known and the exceptions within the condition could be applied.
Roy Pinnock is a partner in the planning and public law team at Dentons
