The High Court in Network Rail Infrastructure Ltd, R (On the Application Of) v The Secretary of State for the Environment, Food And Rural Affairs [2017] EWHC 2259 (Admin) has recently clarified the legal tests associated with highway stopping up following grant of planning permission pursuant to an application under section 247 or 257 of the Town and Country Planning Act 1990.
The case concerned the Eden District Council Public Path Stopping Up Order (No. 1) 2015 (“the Order”) which had been submitted to the Secretary of State for confirmation under section 257 of the Town and County Planning Act 1990 (“the 1990 Act”). The order proposed the extinguishment of a public footpath which crossed railway tracks and was opposed by local user groups.
The order arose following the grant of planning permission for a residential development of the adjacent site. The stopping up of the ‘off-site’ public footpath was imposed by a Grampian planning condition. Such condition (as varied by a s73 permission) stated:
"No development hereby approved shall take place beyond plots 1-22, 49-53, 87-95, 73-74, 98-113 and 133-142 (64 units total) unless any of the following exceptions occur:
i) A footpath diversion and stopping up order that incorporates the diversion of the existing footpath adjacent to the cemetery, the stopping up of it to prevent any access to the Carlisle-Settle public railway crossing fromt eh [sic] site (including the erection of signage and fencing prohibiting such access) and re-routing of the footpath to the north-east of the site that can in principle afford connectivity to Drawbriggs Lane, as [sic] been made and confirmed by the LPA or the Secretary of State, or
ii) the Secretary of State, upon consideration of a lawfully made stopping up order as aforementioned in point (i) does not confirm the order;
Upon any confirmed diversion and stopping up order coming into force, the new footpath route shall be fully completed including lighting and made available prior to the occupation of units 39-48 and 126-132."
Statutory Provisions
Sections 247 and 257 of the 1990 Act allows the making of an order authorising the stopping up or diversion of a highway if the relevant authority 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 3 or section 293A of the 1990 (or by a government department).
A section 257 order applies specifically to public footpaths, bridleways and restricted byways. The district or county council are the relevant authority empowered to make such orders. However, the made order can only be confirmed (i.e. take legal effect) by such Local Authority if it is unopposed following statutory notifications. If the made order is opposed then it is referred to the Secretary of State to decide whether to confirm the order. An inspector will be appointed by the Secretary of State who will either hold a local inquiry or receive written representations.
A section 247 order applies to all highways and generally used for all other types of highway (applying the legal maxim lex specialis derogat legi generali). The relevant authority is either the London borough councils (within Greater London) or the Secretary of State (outside Greater London). There is no separate confirmation stage, with the order taking effect from the date such authority make the order.
Inspector’s Decision
At the local inquiry, the inspector considered a preliminary issue as to whether part (ii) of the planning condition (i.e. authorising continuance of the development in the event of non-confirmation of a stopping up order) meant that the development failed the necessity test in section 257. In other words, the order was not necessary to enable development to be carried out.
The inspector found the necessity test was not met, that the order should therefore not be confirmed, and closed the inquiry.
High Court’s Decision
Holgate J determined that the inspector had made an error of law, as to his interpretation of section 257, in his decision on the preliminary issue. The inspector’s decision was quashed together with a direction for a re-consideration of the order before a new inspector.
The legal principles confirmed by Holgate J can be summarised as follows:
(i) Necessity Test
- (a) The relevant authority cannot make and/or confirm an order unless satisfied that a planning permission exists for development and that it is necessary to authorise the stopping up (or diversion) of the public right of way by the order so as to enable that development to take place in accordance with that permission;
- (b) Necessity should be interpreted in accordance with the plans and conditions of a planning permission which allow the development to be carried out. Thus, the necessity test is concerned with whether such an order is necessary for that purpose;
- (c) A Grampian planning condition can satisfy the necessity test; and
- (d) The word "necessary" does not mean "essential" or "indispensable", but instead means "required in the circumstances of the case." Those circumstances must include the relevant terms of the planning permission.
(ii) Merits Test
- (a) The relevant authority has discretion as to whether to confirm the order and therefore may refuse to do so;
- (b) In the exercise of that discretion the relevant authority is obliged to take into account any significant disadvantages or losses flowing directly from the stopping up order which have 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 they must also 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. They must then decide whether any such disadvantages or losses are of such significance or seriousness that they should refuse to make the order; and
- (c) The confirmation procedure for the stopping up order does not provide an opportunity to re-open the merits of the planning authority's decision to grant planning permission, or the degree of importance in planning terms to the development going ahead according to that decision.
Holgate J was extremely critical of the inspector determining only the preliminary issue of the necessity test. He commented that great caution should be taken when deciding matters on preliminary issues, noting the risks to procedural fairness arising therefrom, and urged the planning inspectorate to revise its guidance to inspectors to address such issue.
Importantly, he found that the inspector had misinterpreted the necessity test in that the inspector had not interpreted the necessity of the development ‘in accordance with the permission’. On the correct interpretation of the permission, the planning condition invoked both the necessity test and the merits test alongside each other. In short Holgate J found that the correct approach was:
“the Grampian restraint on carrying out the residual development continues to make the stopping up order necessary until at least the outcome of the merits test is known, and either exception (i) or exception (ii) can be applied. If the merits test is not satisfied, the order cannot be confirmed for that reason and at that point, but not before, the order ceases to be necessary to enable the residual development to be carried out in accordance with the permission. Thus, under both exceptions (i) and (ii) the necessity test and the merits test are considered alongside each other”.
Lesson: applicants and objectors to highway stopping up applications under the 1990 Act need to carefully consider the plans and planning conditions forming part of the planning permission so as to satisfy the necessity test. But in doing so the merits test should not be ignored.
