Highway — Stopping-up order — Appeal by frontager — Different functions of Secretaries of State — Planning considerations — Highway considerations — Position of frontager at common law — Whether Secretary of State should consider the particular loss suffered by a frontager likely to flow from the extinguishment of his existing legal right — Whether planning decision would be reconsidered — Relevant considerations
The appellant
is the owner of a restaurant business at Temple Street, Blackpool. In January
1987, following a planning application by the second respondents, Ladbroke City
& County Land Co Ltd, the local planning authority, Blackpool Borough
Council, granted permission for a development scheme involving the erection of
a building across the whole width of Temple Street, which would be wholly
closed. Following a local inquiry in August 1988, the inspector recommended
that the necessary stopping-up order under section 209 of the Town and Country
Planning Act 1971 (section 247 of the Town and Country Planning Act 1990)
should not be made. His reason was the serious effect it would have on the
appellant’s restaurant business, 60%-70% of which depended on passing trade. On
February 24 1989 the Secretary of State for Transport rejected his inspector’s
recommendations. He considered that section 209 was solely related to highway
matters; it was not concerned with the merits of the planning permission which
had been granted and therefore the effect of a stopping-up order on passing
trade in relation to the appellant was not a relevant material consideration.
The appellant appealed the decision of Hodgson J (December 14 1989), who
decided that the Secretary of State had directed himself properly.
Unlike the
grant of planning permission, which does not affect legal rights as such, a
stopping-up order extinguishes legal rights in respect of which an occupier of
land fronting a highway may suffer particular damage. Where a highway is
obstructed, otherwise than by a stopping-up order, a person has a right of
action either on the ground of interference with the private right to have
access on to a highway or on the ground of public nuisance where the plaintiff
suffers a particular injury beyond that suffered by the rest of the public: see
pp 42-43C
When
considering how to exercise his discretion whether to make an order under
section 209, the Secretary of State ought to take into account the adverse
effect his order would have on those entitled to the rights which would be
extinguished by his order. This is especially so because the 1971 Act makes no
provision for compensation to those whose rights are extinguished. Such
extinguishment or expropriation should not take place in the exercise of a
discretionary power without the Secretary of State considering and taking into
account the effect that such expropriation would have directly on those
concerned: see pp 46D-48.
The Secretary
of State, in his decision letter, expressed the view that loss of trade was a
matter for the planning authority and not for him. He failed to take into
account, as one of the relevant factors, the financial loss the appellant would
be likely to suffer if the order sought were made: see p 48.
to in the judgments
Benjamin v Storr (1874) LR9 CP 400; [1874-80] All ER Rep 2000
Fritz v Hobson (1880) 14 ChD 542
Gravesham
Borough Council v British Railways Board
[1978] Ch 379; [1978] 3 WLR 494; [1978] 3 All ER 853; (1977) 76 LGR 202
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeal against
decision of Hodgson J
This was an
appeal against a decision of Hodgson J (December 14 1989) who dismissed the
appellant’s application under section 244 of the Town and Country Planning Act
1971 to quash a decision of the Secretary of State for Transport, the first
respondent, who had made an order under section 209 of the 1971 Act following
an application by Ladbroke City & County Land Co Ltd, the second
respondents.
QC and John Barrett (instructed by Walker Morris Scott Turnbull) appeared for
the appellant, Mr K Vasiliou.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for Transport.
Friedman QC (instructed by Saunders Sobell Leigh & Dobin) appeared for the
second respondents, Ladbroke City & County Land Co Ltd.
following judgments were delivered.
NICHOLLS LJ:
This appeal raises a question concerning the matters
which the Secretary of State for Transport may properly take into account in
considering whether to make an order, under section 209 of the Town and Country
Planning Act 1971, authorising the stopping up of a highway. The appellant, Mr
Vasiliou, carries on a restaurant business, known as Giggi’s Taverna, at Temple
Street, Blackpool. Temple Street is a little side-street situated at the heart
of the tourist centre of Blackpool. It is about 150 yds from Blackpool Tower
and about the same distance from the seafront promenade. It is some 16 ft or so
wide and about 70 yds long. It runs north-south and lies between and connects
two other roads, which are roughly parallel to each other: Church Street to the
north and Victoria Street to the south. Victoria Street is now a pedestrian
precinct.
In 1986
Ladbroke City & County Land Co Ltd applied to Blackpool Borough Council, as
the local planning authority, for permission to carry out two developments. The
first, and major, development involved the construction of a two-storey
building of seven shops fronting on to Victoria Street and abutting, at one
side, on to Temple Street. Permission was granted and that development has now
been completed. The second proposed development was the construction of one
two-storey shop, to front on to Victoria Street and to be built on the southern
end of Temple Street itself. The new building would be erected across the whole
width of Temple Street, as it now is. The building would fit between the
Victoria Street buildings situated on either side of the end of Temple Street
and it would wholly close off Temple Street from Victoria Street. The length of
Temple Street on which the new building would be constructed would have to be
stopped up. Temple Street would become a cul-de-sac, which could be entered
only from Church Street. In this way the southern one-third of Temple Street
would be built over and cease to exist.
On January 6
1987 the local planning authority granted permission for this second
development, but subject to the condition that work should not commence until
the necessary street closing order had been obtained. Ladbroke duly applied to
the Secretary of State for the appropriate order. A local inquiry was held in
August 1988. The inspector recommended that the order should not be made. His
reason was this. If the southern end of Temple Street were stopped up,
pedestrians who at present pass along Temple Street
alternative route, along Corporation Street. The additional walk, of some 90
yds, would not be significant. Corporation Street could accommodate the
overflow from Temple Street without intolerable problems. But the closure of
the southern end of Temple Street would have a serious effect on Mr Vasiliou’s
restaurant. In the summer between 360 and 1,000 people an hour walk along
Temple Street past Mr Vasiliou’s restaurant. He is heavily dependent upon these
passers-by for his custom. Between 60% and 70% of his business is passing
trade. If Temple Street were stopped up as proposed, Mr Vasiliou’s business
would be likely to fail. The inspector was impressed by this hardship which the
closure order would cause for Mr Vasiliou. He considered that it would be
unjust in the circumstances for Mr Vasiliou to suffer significant financial
loss without the possibility of compensation.
The Secretary
of State rejected the inspector’s recommendation. He agreed with the
inspector’s findings and conclusions except for the conclusion relating to Mr
Vasiliou’s objection. In para 5 of his decision letter dated February 24 1989,
the Secretary of State said:
Section 209
of the Town and Country Planning Act 1971, under which the stopping up Order
would be made, is solely related to highway matters; it is not concerned as to
the merits of the planning permission which has already been granted. For that
reason the Secretary of State cannot agree with the Inspector’s conclusion . .
. that the effect of the stopping up on trade must be a relevant material
consideration. In his view the question of any potential loss of trade is a
matter for the planning authority to take into account when considering the application
for planning consent. If the Secretary of State were to take this matter into
account in deciding whether or not to authorise the stopping up of the highway
in question under section 209(1) then he would be usurping the planning
function and acting beyond his powers.
The Secretary
of State stated his conclusion in para 7:
Following
consideration of the Inspector’s Report the Secretary of State is satisfied
that the proposed closure of Temple Street is necessary to allow the approved
development to be carried out. He is also satisfied that alternative routes for
users of the highway to be stopped up are available and adequate. While there
may be some adverse effect on local businesses caused by the closure of Temple
Street, the Secretary of State does not consider that it would be appropriate
to reject the proposed closure order on those grounds alone. For the reasons
given above the Secretary of State does not consider that the objection raised
by Mr Vasiliou justified the Inspector’s recommendation that the order should
not be made. The Secretary of State has, therefore, decided to make the order
without modification and has done so.
So the
Secretary of State made the stopping-up order.
Mr Vasiliou
applied to the court, under section 244 of the 1971 Act, as a person aggrieved
by the making of the order. On December 14 1989 Hodgson J dismissed Mr
Vasiliou’s application. The judge held that the Secretary of State had directed
himself correctly and that if he had taken into account the effect that the
stopping up would have on Mr Vasiliou’s business, he would have been
interfering with the planning function under the aegis of his fellow Secretary
of State, the Secretary of State for the Environment. Mr Vasiliou had his
chance to object on planning grounds, and it would have been wrong to take that
matter into account in deciding the matters which were the function of the
Secretary of State for Transport. Mr Vasiliou has appealed from that decision.
Planning
permission and stopping-up orders
I have two preliminary
observations. First, when determining which matters may properly be taken into
account on an application for planning permission or an application for an
order stopping up a highway, it is important to have in mind the different
functions of a planning permission and of a stopping-up order. It is axiomatic
that a planning permission does not of itself affect or override any existing
rights of property. A grant of planning permission sanctions the carrying out
of a development which otherwise would be in contravention of the statutory
inhibition against, in general, the carrying out of any development of land
without planning permission (section 23). But if carrying out a development for
which permission is granted would, for instance, be in breach of a restrictive
covenant affecting the freehold, or in breach of a covenant in a lease, or
infringe rights of way or rights of light of adjoining owners, the existing
legal rights of those entitled to enforce the covenant or entitled to the
benefit of the easement are not overridden by the grant of planning permission.
This is so whether the development comprises the carrying out of building or
other operations on land or the making of a material change in the use of land.
The position
is otherwise with an order stopping up or diverting a highway. In the absence
of such an order obstruction of a highway is a criminal offence. It is also a
public nuisance. The Attorney-General, acting ex officio or at the
relation of a third party, can bring proceedings for the removal of the
obstruction. So may a local authority, acting in the interests of the local
inhabitants, by virtue of the enabling powers in section 222 of the Local
Government Act 1972. So also may an individual who sustains particular damage
other than and beyond the inconvenience suffered by him in common with the
public at large. Such an individual may also recover damages for the loss
caused to him by the wrongful obstruction. But once a stopping-up order has
been made those existing legal rights are lost. To the extent to which the
highway is stopped up, the rights of the public over the highway are
extinguished under the authority of a statute. Thereafter neither the
Attorney-General, nor a local authority, nor a person suffering particular damage
can bring forward any complaint or seek any relief from the court in respect of
the existence of the building or fence or other works which, but for the
stopping-up order, would constitute obstruction of a highway.
Particular
damage
My second
observation concerns the existence and nature of the claim which Mr Vasiliou
would have in the present case if the proposed building works proceeded without
a stopping-up order having been made in respect of the southern end of Temple
Street. The better view seems to be that, whatever might have been the position
in the past, today a person has a right of action if the highway is obstructed
and as a result prospective customers are diverted from his place of business
and in consequence he suffers loss. The authorities are summarised conveniently
and succinctly by Slade J in Gravesham Borough Council v British
Railways Board [1978] Ch 379 at pp 397-398.
In the instant
case the closing off of Temple Street from Victoria Street would not prevent
any members of the public who wished to eat at Mr Vasiliou’s restaurant from
doing so, nor would any would-be diners be subjected to a significantly less
convenient access route. Mr Vasiliou’s concern is that, by turning Temple
Street into a cul-de-sac, members of the public who would have used Temple
Street and thereby become aware of Giggi’s Taverna will not do so in future. He
will lose the trade of passers-by. It seems to me that, in principle, loss so
arising could properly be recovered by
Street. The contrary was not contended before us.
What would be
the nature of such a claim by Mr Vasiliou?
His loss stems from the fact that he operates a restaurant adjacent to
the highway in question. In Fritz v Hobson (1880) 14 ChD 542 the
plaintiff was a dealer in antiques. He had a shop in a passageway off Fetter
Lane, in London, over which there was a public right of way. The defendant’s
building operations blocked this passageway for some months. The consequence
was to drive away persons who might have become customers of the plaintiff. Fry
J held that the plaintiff was entitled to recover damages for loss in his
antiques’ business, which was assessed at £ 50, on two grounds. First, on the
ground of interference with the private right enjoyed by the plaintiff, as
owner of a property adjoining a highway, to have access to the highway. Second,
on the ground of public nuisance. The plaintiff was a person who had suffered a
particular injury beyond that suffered by the rest of the public. In reaching
that conclusion Fry J applied the classic exposition of the law on this subject
enunciated by Brett J in Benjamin v Storr (1874) LR9 CP 400 at p
406. I do not think that the distinction between these two causes of action is
material for present purposes. It is sufficient to note that a person in the
position of the plaintiff in Fritz v Hobson (supra),
and of Mr Vasiliou in the present case, has a well-recognised cause of action,
on one or other or both of the grounds just mentioned, against anybody who
obstructs a highway and thereby, as a direct consequence, causes financial loss
to a business being carried on on land adjoining the highway.
Section
209 of the Town and Country Planning Act 1971
I turn to the
statutory provisions. Section 209 is in Part X of the 1971 Act. Part X is
entitled ‘Highways’. It consists of a miscellaneous collection of sections
concerned principally with the stopping up and diversion of highways, the
conversion of highways into footpaths or bridleways, the extinguishment of
rights of way over land held by a local authority for planning purposes, and
the consequential compulsory acquisition of land for highway purposes. In some
instances there is provision for the payment of compensation; for example,
under section 212(5) compensation is payable to a person who has an interest in
land having lawful access to a highway when the highway is ‘pedestrianised’. In
other instances, including section 209, there is no provision for the payment
of compensation to those adversely affected by the making of the relevant
order.
Section
209(1), as amended, reads:
The Secretary
of State may by order authorise the stopping up or diversion of any highway if
he is satisfied that it is necessary to do so in order to enable development to
be carried out in accordance with planning permission granted under Part III of
this Act or by virtue of Schedule 32 to the Local Government, Planning and Land
Act 1980, or to be carried out by a government department
This
subsection is to be read with section 215, which enacts the procedure for
making orders under section 209. In short, notices stating, among other
matters, the general effect of the proposed order and that, within 28 days,
persons may by written notice object to the making of the order have to be
suitably advertised and displayed (section 215(1) and (2)). If objection is
received from a local authority, or from a water, hydraulic power, gas or
electricity undertaker having cables or pipes under the highway, or ‘from any other
person appearing to him to be affected by the order’, the Secretary of State is
obliged normally to cause a local inquiry to be held (section 215(3)).
After considering any objections, and the report of the person who held the
inquiry, the Secretary of State may make the order either without modification
or subject to such modifications as he thinks fit (section 215(5)).
These sections
confer a discretionary power on the Secretary of State. He cannot make the
order unless he is satisfied that this is necessary in order to enable the
development in question to proceed. But even when he is satisfied that the
order is necessary for this purpose he retains a discretion; he may still
refuse to make an order. As a matter of first impression I would expect that
when considering how to exercise this discretion the Secretary of State could
take into account and, indeed, that he ought to take into account the adverse
effect his order would have on those entitled to the rights which would be
extinguished by his order. The more especially is this so because the statute
makes no provision for the payment of any compensation to those whose rights
are being extinguished. I would not expect to find that such extinguishment, or
expropriation, is to take place in the exercise of a discretionary power
without the Secretary of State in question so much as considering and taking
into account the effect that such expropriation would have directly on those
concerned.
Having read
and reread the sections I can see nothing in their language, or in the
subject-matter, to displace my expectation. I can see nothing, on a fair
reading of the sections, to suggest that, when considering the loss and
inconvenience which will be suffered by members of the public as a direct
consequence of closure of part of the highway, the Secretary of State is not to
be at liberty to take into account all such loss, including the loss, if any,
which some members of the public such as occupiers of property adjoining the
highway will sustain over and above that which will be sustained generally. The
latter is as much a direct consequence of the closure order as the former. The
loss flows directly from the extinguishment, by the order, of those occupiers’
existing legal rights.
The
respondents’ case: (1) the ‘overlap’ point
The
respondents’ case is that this interpretation of section 209 is inconsistent
with the scheme of the Act. Their case is that, although not stated expressly
in section 209, it is implicit that the Secretary of State cannot have regard
to any loss of trade which the occupier of land adjacent to a highway may
suffer by reason of closure of part of the highway. This is implicit because
such loss is a matter to be taken into account at the planning application
stage. Part III of the Act contains a detailed code concerning planning
control, with machinery for appeals and so forth. This code is distinct from
the procedure set out in Part X with regard to stopping-up orders. If a loss
such as Mr Vasiliou’s in the present case could be taken into account by the
Secretary of State under section 209, that would result in the Part X procedure
relating to highways subverting the Part III procedure relating to planning
control. It would result in the merits of the planning decision being reopened
and considered again.
I am unable to
accept this argument. In the first place, I cannot accept that the financial
loss of which Mr Vasiliou complains is, as such, a matter properly to be
taken into account at the planning application stage. I emphasise ‘as such’. The
proposed development will necessitate turning Temple Street into a cul-de-sac
with no access, even for pedestrians, from Victoria Street. The local planning
authority was concerned with all the planning ramifications of this. If one of
the likely consequences would be the closure of Giggi’s Taverna because of loss
of trade, the planning authority would be concerned with the impact of that on
the locality. The planning authority might also need to take into account
matters such as any significant resulting loss of employment opportunities. But
I do not think that Mr Vasiliou’s financial loss flowing
authority’s decision. Had the planning authority rejected Ladbroke’s
application regarding the second development and stated as the reason, or one
of the reasons, ‘the proposed development is likely to cause severe financial
loss to Mr Vasiliou’, in my view the decision, to that extent, would have been
impeachable.
We were
referred to the much-quoted observations of Lord Scarman in Westminster City
Council v Great Portland Estates plc [1985] AC 661. Under section
29(1) of the 1971 Act a planning authority, in dealing with an application for
planning permission, is to have regard to the provisions of the development
plan, so far as material, and to ‘any other material considerations’. Lord
Scarman observed (at p 670) that the test of what is a ‘material consideration’
is whether it serves a planning purpose and that a planning purpose is one
which relates to the character of the use of the land. But he added:
Personal
circumstances of an occupier, personal hardship, the difficulties of businesses
which are of value to the character of a community are not to be ignored in the
administration of planning control. It would be inhuman pedantry to exclude
from the control of our environment the human factor. The human factor is
always present, of course, indirectly as the background to the consideration of
the character of land use. It can, however, and sometimes should, be given
direct effect as an exceptional or special circumstance. But such
circumstances, when they arise, fall to be considered not as a general rule but
as exceptions to a general rule to be met in special cases. If a planning authority
is to give effect to them, a specific case has to be made and the planning
authority must give reasons for accepting it.
The respondents
sought to rely on the references to the personal circumstances of an occupier
and personal hardship.
I do not think
that these observations assist the respondents on this appeal. No case has been
advanced, or made out, for Mr Vasiliou’s personal financial loss being an
exceptional or special circumstance which, by way of exception to the general
rule, Blackpool Borough Council should have considered when deciding Ladbroke’s
application for planning permission. The case advanced to this court was that
the impact which the development will have on trade being carried on at nearby
properties was a matter to be considered at the planning stage. I agree. So it
was. But this does not embrace the whole subject-matter of Mr Vasiliou’s
complaint, for it does not include the consequential financial loss he will
suffer.
I pause to
observe that, if I am right in thinking that Mr Vasiliou’s financial loss as
such was not a material consideration for planning purposes, the consequence,
on the respondents’ construction of section 209, is that a stopping-up order,
extinguishing Mr Vasiliou’s existing legal rights as described above, will be
made without anybody, either the planning authority or the Secretary of State
or anyone else, ever taking into account the loss that will cause for Mr
Vasiliou. That is not a conclusion I would readily embrace.
There is a
further reason why I cannot accept the argument that for the Secretary of State
for Transport to take into account Mr Vasiliou’s financial loss would ‘subvert’
the planning procedures or ‘usurp’ the functions of the local planning
authority or the Secretary of State for the Environment. Thus far I have
concluded that Mr Vasiliou’s financial loss was not, as such, a material
consideration for planning purposes. But even if this were not so, the
‘subversion’ argument would still be unsound. The argument is founded on there
being no overlap between matters which can properly be
properly be considered by the Secretary of State for Transport on the other
hand. But this is not so. At the planning stage in the present case the
planning authority could properly take into account, and presumably did take
into account, whether the closure of the southern end of Temple Street was
desirable or not. In this regard the council would have considered, among other
matters, the repercussions such closure would have on pedestrian traffic flows
in and around Victoria Street and Corporation Street. Indeed, the Department
for the Environment has drawn attention to the need for local planning
authorities to take into account the effect of proposed developments on public
rights of way: see paras 12 to 14 of Circular 1/83 — Public rights of way.
But, however narrowly section 209 is construed, matters such as pedestrian
traffic flows were a matter to be taken into account by the Secretary of State
for Transport when considering the closure order application. It would be open
to him to form a wholly different view on such matters from the view taken of
them by the planning authority. Thus, as I see it, given the existence of areas
of overlap, there is in any event inherent in the existence of the two separate
procedures the feature that, in respect of ‘overlapping’ matters, the persons
making the two decisions will be considering the same items and may form a
different view regarding them.
The
respondents’ case: (2) reopening the planning permission decision
More serious is
the respondents’ further argument that, if Mr Vasiliou’s financial loss has to
be taken into account on the closure order application, the Secretary of State
will find himself having to investigate anew the overall merits of the
development for which planning permission has been given. We were urged that,
if Mr Vasiliou’s contentions on this appeal are correct, then, in deciding
whether to make the closure order despite the financial loss this would cause
for Mr Vasiliou, the Secretary of State would have to evaluate the
desirability, from the planning point of view, of permitting the new shop to be
built at all on the site of Temple Street. To carry out such an evaluation the
Secretary of State would have to consider afresh the case put forward by the
developer and the supporters of the scheme. He would also have to consider
afresh the case put forward by the objectors. He would need to consider the
views of the local planning authority. In short, an inquiry held under section
215(3) on the closure order application would involve evidence and
representations on all the matters already investigated and considered by the local
planning authority or at a planning inquiry. A closure order application would
become, in effect, an appeal, not authorised by the statutory code relating to
planning control, against the grant of planning permission.
If the
consequence of what seems to me to be the natural construction of section 209
were to enable an aggrieved objector to reopen the merits of a planning
decision in this way, I would see much force in this argument. Parliament
cannot have intended such a result. But, in my view, these fears are
ill-founded. A prerequisite to an order being made under the limb of section
209 relevant for present purposes is the existence of a planning permission for
the development in question. Thus, the Secretary of State for Transport’s power
to make a closure order arises only where the local planning authority, or the
Secretary of State for the Environment, has determined that there is no sound
planning objection to the proposed development. I do not think that there can
be any question of the Secretary of State for Transport going behind that
determination. He must approach the exercise of his discretion under section
209 on the footing that that issue has been resolved in favour of the
development being allowed to proceed. It is on that basis that he must
determine whether the disadvantages and losses, if any, flowing directly from
a closure order are of such significance that he ought to refuse to make the
closure order. In some instances there will be no significant disadvantages or
losses, either (a) to members of the public generally or (b) to the persons
whose properties adjoin the highway being stopped up or are sufficiently near
to it that, in the absence of a closure order, they could bring proceedings in
respect of the proposed obstruction. In such instances the task of the
Secretary of State for Transport will be comparatively straightforward. In
other cases there will be significant disadvantages or losses under head (a) or
under head (b) or under both heads. In those cases, the Secretary of State must
decide whether, having regard to the nature of the proposed development, the
disadvantages and losses are sufficiently serious for him to refuse to make the
closure order sought. That is a matter for his judgment. In reaching his
decision he will, of course, also take into account any advantages under heads
(a) or (b) flowing directly from a closure order: for example, the new road
layout may have highway safety advantages.
Of course,
some proposed developments are of greater importance, from the planning point
of view, than others. When making his road closure decision the Secretary of
State will also need to take this factor into account. But here again, I do not
think that this presents an insuperable difficulty. In the same way as it is
not for the Secretary of State to question the merits, from the planning point
of view, of the proposed development, so also it is not for him to question the
degree of importance attached to the proposed development by those who granted
the planning permission. The planning objective of the proposed development and
the degree of importance attached to that objective by the local planning
authority will normally be clear. If necessary, the planning authority can
state their views on these points quite shortly. Likewise, if the permission
were granted by the Secretary of State for the Environment on appeal, his
decision letter would normally give adequate guidance on both these points.
Either way, the Secretary of State for Transport can be apprised of the views on
these points of the planning authority or of the minister who granted the
planning permission. The Secretary of State for Transport will then make his
decision on the road closure application on that footing. In this way there
will be no question of objectors being able to go behind the views and decision
of the local planning authority, or of the Secretary of State for the
Environment, on matters which were entrusted to them alone for decision, viz,
the planning merits of the development.
I add a
footnote. I have referred above to the Secretary of State for Transport
carrying out an exercise of judgment: weighing the disadvantages, if any, of
the road closure against the advantages of not thwarting the proposed
development. It should be appreciated that the need for the Secretary of State
to carry out this exercise is not avoided by the respondents’ arguments. Even
on the respondents’ construction of section 209 there will be cases where this
exercise is called for. Even on the respondents’ construction, there will be
cases where there are significant disadvantages to members of the public
generally if the road is closed (head (a) above). In such cases it must be open
to the Secretary of State to make the closure order, despite these
disadvantages. It must be open to him to take the view that the development
should proceed, despite the disadvantages. Conversely, it must be open to him
to reach the contrary conclusion. Thus, even on the narrower interpretation of
the matters which the Secretary of State may consider, the judgmental exercise
to which I have referred will need to be carried out from time to time. Any
difficulties there may be in the Secretary of State having to carry out this
exercise exist and have to be faced on either construction of section 209.
Conclusion
on section 209
My overall
conclusion on section 209 is that I can see nothing in the scheme of the Act
which requires, as a matter of implication, that the Secretary of State for
Transport shall not be entitled, when making a road closure order, to have
regard to and take into account the directly adverse effect his order would
have on all those presently entitled to the rights being extinguished by the
order. In my view, he is entitled to, and should, take into account those
matters when exercising his discretion on a road closure application under
section 209.
Para 7 of
the decision letter
In one respect
the Secretary of State’s decision letter is puzzling. In para 5 he expressed
the view that loss of trade was a matter for the planning authority and not for
him. But, certainly on one reading of the letter, in para 7 he did consider and
take into account the impact the road closure order would have on local
businesses. This led to an attack being advanced before the judge on the ground
that the two paragraphs were inconsistent and that, to that extent, the letter
was unintelligible. Hodgson J observed that the material sentence in para 7 was
infelicitously expressed. But he decided that in para 7 the minister was not
going back on what he had said earlier in the letter. So the judge rejected the
inconsistency argument.
Before us this
argument was abandoned. Further, and more importantly for present purposes, the
respondents did not suggest that if their argument based on the construction of
section 209 were wrong the minister’s decision could still stand. Counsel, in
my view rightly, did not contend that in para 7 the Secretary of State for
Transport was expressing his view on the alternative basis of what would be the
position if, contrary to his view expressed in para 5, objections based on the
adverse consequences of loss of trade were a material matter for him to take
into account on the road closure application.
In these
circumstances it must follow that the Secretary of State erred in his approach
to this matter. He misdirected himself when exercising his discretion. He
should have taken into account, as one of the relevant factors, the financial
loss Mr Vasiliou would be likely to suffer if the order sought were made. That
he did not do. I would allow the appeal and quash the stopping-up order in
respect of Temple Street mentioned by the Secretary of State in his letter of
February 24 1989.
SIR
ROUALEYN CUMMING-BRUCE: I agree.
MUSTILL LJ:
I also agree.
Appeal
allowed with costs.
