Turbulent times as the Conservative party desperately looks to position itself for the next general election, still mindful, it seems, of its narrow, anti-ULEZ fuelled, win in the Uxbridge and South Ruislip by-election in July 2023.
I wonder if the prime minister has recently read chapter 9 of the NPPF (“Promoting Sustainable Transport”)?
I wonder if the prime minister recalls that since 1 June 2023 a new Government quango, Active Travel England is a statutory consultee on all large planning applications to “to help planning authorities in their work to implement good active travel design – for example, by ensuring developments include walking, wheeling and cycling connectivity to schools and local amenities. This will help improve public health, save people money and reduce harmful emissions.” ATE’s framework document may be seen as dangerously woke in this new political climate, aiming to deliver increases in active travel to 50% of all journeys in urban areas.
“End the sale of new petrol and diesel cars and vans from 2030; from 2035, all new cars and vans must be zero emission at the tailpipe.” (long gone)
“Increase the share of journeys taken by public transport, cycling and walking.”
“Invest £2 billion in cycling and walking, building first hundreds, then thousands of miles of segregated cycle lane and more low-traffic neighbourhoods with the aim that half of all journeys in towns and cities will be cycled or walked by 2030. As announced in the Transport Decarbonisation Plan, we will create at least one zero emission transport city.”
The party’s Manchester conference saw two major policy announcements by the Government on transport (neither made first to Parliament as convention requires):
From the foreword to the Plan for Drivers, the car is king again:
“There’s nothing wrong with driving. Most of us use a car and, for many, life would not be liveable without their car. For those in rural areas, it is a lifeline. A car can hugely expand the independence of a younger person, as well as keep older people connected to key services and their families.”
There is the rather grudging nod to other modes of transport, but whatever you do, don’t vilify the private car:
“Walking, cycling and public transport are necessary in a multi-modal transport system and we support their continued growth, but they are not the right choice for everyone’s journey. Being pro-public transport does not mean being anti-car. The easy political choice is to vilify the private car even when it’s been one of the most powerful forces for personal freedom and economic growth in the last century. Used appropriately and considerately, the car was, is, and will remain a force for good.”
That first sentence is somewhat mealy mouthed in the face of what follows. The Government apparently intends to:
“update guidance (in England) on 20mph speed limits. While 20mph zones are an important tool in improving road safety in residential areas, over-use risks undermining public acceptance, so we are clear that 20mph zones should be considered on a road-by-road basis to ensure local consent, not as blanket measures
stop local authorities using so-called “15-minute cities” to police people’s lives. We will consult on measures including the removal of local authorities’ access to DVLA data to enforce such schemes by camera
following the LTN review, consider new guidance on LTNs with a focus on the importance of local support, and consider as part of the LTN review how to address existing LTNs that have not secured local consent”
Local authorities policing people’s lives via “15 minute cities” enforced by cameras? Bizarre.
There will be restrictions on the operation of bus lanes, measures to make parking easier, discouragement of penalty charge notices. And so it goes on.
And then today we had, to accompany the prime minister’s party conference speech, Network North – serving as the political cover for today’s decision to scrap HS2 north of Birmingham. Regardless of the noise about monies being diverted to other transport projects (many of which, worryingly for our climate change targets, are of course road projects), the cancellation decision is disturbing – not just for people and businesses who would have benefited from the longer route – but of course hugely upsetting also those whose properties have already been taken, as well of all of us whose money has been spent, irreversibly changing the environment including areas of outstanding natural beauty and ancient woodlands, on the basis of asserted public benefits that will now never be fully realised. In retrospect, today’s decision raises question marks over the initial decision by David Cameron’s government to proceed – as well as subsequent governments’ decisions to continue.
I was at least pleased to see that the Government has at re-committed to the line actually reaching Euston:
“We are going to strip back the project and deliver a station that works, and that can be open and running trains as soon as possible, and which has the leadership in place to deliver maximum value to the taxpayer. We will not provide a tunnel between Euston and Euston Square underground station or design features we do not need. Instead we will deliver a 6-platform station which can accommodate the trains we will run to Birmingham and onwards and which best supports regeneration of the local area. That is how we properly unlock the opportunities the new station offers, while radically reducing its costs.
We will appoint a development company, separate from HS2 Ltd, to manage the delivery of this project. We will also take on the lessons of success stories such as Battersea Power Station and Nine Elms, which secured £9 billion of private sector investment and thousands of homes. So we will harness the future growth that the station will unleash to support its development, to ensure we get the best possible value for the British taxpayer – and ensure that funding is underpinned by contributions from those people and businesses its development supports. At the same time, we are considerably upping the ambition of the Euston redevelopment, where we will be looking to establish a Development Corporation to create a transformed ‘Euston Quarter’ – potentially offering up to 10,000 homes.”
It will be interesting to see what ensues.
Foot to the floor, election ahead….
Simon Ricketts,4 October 2023
Personal views, et cetera
Detail from one of the first records I ever owned…
The court has quashed the decision of the Secretary of State (“SST”), against his examining authority’s recommendations, to “grant a development consent order (“DCO”) […] for the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down which would replace the existing surface route. The new road would have a dual instead of a single carriageway and would run in a tunnel 3.3 km long through the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“WHS”)“. I had written about the SST’s decision to grant the DCO in my 14 November 2020 blog post, Minister Knows Best (It is interesting to look back – all three of the DCO decisions I mentioned in that post have now been quashed, the others being Norfolk Vanguard Windfarm (also by Holgate J, in R (Pearce) v Secretary of State for Business, Energy and Industrial Strategy (18 February 2021) and also in February 2021 the quashing by consent order of the Manston Airport DCO).
The SST’s decision to grant the A303 (Amesbury to Berwick Down) Development Consent Order 2020, to give it its formal title, was challenged on five grounds, some of those with sub-grounds. They were, in full:
Ground 1
(i) The SST failed to apply paragraph 5.124 of the NPSNN (see [43] above) to 11 non-designated heritage assets;
(ii) The SST failed to consider the effect of the proposal on 14 scheduled ancient monuments (i.e. designated heritage assets);
(iii) The SST failed to consider the effect of the proposal on the setting of the heritage assets, as opposed to its effect on the OUV of the WHS as a whole;
(iv) The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets.
Ground 2– lack of evidence to support disagreement with the Panel
“The claimant submits that the SST disagreed with the Panel on the substantial harm issue without there being any proper evidential basis for doing so. Mr. Wolfe QC advances this ground by reference to the SST’s acceptance of the views of IP2 in DL 34, 43, 50 and 80. He submitted that IP2’s representations did not provide the SST with evidence to support his disagreement with the Panel on “substantial harm” in two respects. First, he said that HE only addressed the spatial aspect of the third main issue and did not address harm to individual assets or groups of assets. Second, he submitted that SST had misunderstood IP2’s position: it had never said that the harm would be less than substantial.”
Ground 3 – double-counting of heritage benefits
“The claimant submits that the SST not only took into account the heritage benefits of the scheme as part of the overall balancing exercise required by para. 5.134 of the NPSNN, but also took those matters into account as tempering the level of heritage disbenefit. It is said that this was impermissible double-counting because those heritage benefits were placed in both scales of the same balance.”
Ground 4 – whether the proposal breached the World Heritage Convention
“The claimant contends that the SST’s acceptance that the scheme would cause harm, that is less than substantial harm, to the WHS involved a breach of articles 4 and 5 of the Convention and therefore the SST erred in law in concluding that s.104(4) of PA 2008 was not engaged. It was engaged and so, it is submitted, the presumption in s.104(3) should not have been applied in the decision letter.”
Ground 5
(i) The SST failed to take into account any conflict with Core Policies 58 and 59 of the Wiltshire Plan and with policy 1d of the WHS Management Plan;
(ii) The SST failed to take into account the effect of his conclusion that the proposal would cause less than substantial harm to heritage assets on the business case advanced for the scheme;
(iii) The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.
The 39 Essex chambers press statement (this being a case well represented by barristers from that chambers: five of the seven appearing!) summarises the outcome as follows:
“The claim was allowed on two grounds:
· Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;
· Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.
The Court rejected other grounds of challenge holding:
· There was no failure to consider whether certain archaeological sites were of national importance;
· The effects on certain individual scheduled monuments had been considered;
· The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;
· The Minister had correctly understood Historic England’s advice;
· Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;
· Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.
· The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.”
For those who may misunderstand the supervisory role of the courts, there was this warning from Holgate J:
“Plainly, this is a scheme about which strongly divergent opinions are held. It is therefore necessary to refer to what was said by the Divisional Court in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]:- “It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The Court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”
The present judgment can only decide whether the decision to grant the DCO was lawful or unlawful. It would therefore be wrong for the outcome of this judgment to be treated as either approving or disapproving the project. That is not the court’s function.”
I thought it might be interesting to pick out some of the passages where Holgate J sets out his reasoning for finding the decision to have been unlawful:
Ground 1(iv)
“Here, the SST did receive a precis of the ES [environmental statement] and HIA [heritage impact assessment] in so far as the Panel addressed those documents in its report. But the SST did not receive a precis of, or any briefing on, the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise in its reports. This gap is not filled by relying upon the views of IP2 in the Examination because, understandably, they did not see it as being necessary for them to provide a precis of the work on heritage impacts in the ES and in the HIA. Mr Wolfe QC is therefore right to say that the SST did not take into account the appraisal in the ES and HIA of those additional assets, and therefore did not form any conclusion upon the impacts upon their significance, whether in agreement or disagreement.
In my judgment this involved a material error of law. The precise number of assets involved has not been given, but it is undoubtedly large. Mr Wolfe QC pointed to some significant matters. To take one example, IP1 assessed some of the impacts on assets and asset groupings not mentioned by the Panel as slight adverse and others as neutral or beneficial. We have no evidence as to what officials thought about those assessments. More pertinently, the decision letter drafted by officials (which was not materially different from the final document – see [67] above) was completely silent about those assessments. The draft decision letter did not say that they had been considered and were accepted, or otherwise. The court was not shown anything in the decision letter, or the briefing, which could be said to summarise such matters. In these circumstances, the SST was not given legally sufficient material to be able lawfully to carry out the “heritage” balancing exercise required by paragraph 5.134 of the NPSNN and the overall balancing exercise required by s.104 of the PA 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated heritage assets affected so that they were weighed, without, of course, having to give reasons which went through all of them one by one.”
Ground 5 (iii)
“The focus of the claimant’s oral submissions was that the defendant failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal, firstly, to cover approximately 800m of the cutting and secondly, to extend the bored tunnel so that the two portals are located outside the western boundary of the WHS.”
“The relevant circumstances of the present case are wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming. “
Holgate J goes on to set out in detail nine reasons on which he relies (see paragraphs 278 to 288 of the judgment).
The Secretary of State has an uneasy summer ahead: whether or not he seeks permission to appeal, is this a scheme he is still wedded to, cheek by jowl with his transport decarbonisation plan and promised review of the National Networks NPS? Awkwardly, the prime minister had only recently referred to the project in his 15 July 2021 levelling up speech as “critical and overdue”.
Can you make a u-turn on a trunk road?
Simon Ricketts, 30 July 2021
Personal views, et cetera
We will be discussing the case on clubhouse on 10 August (link here), our regular Planning Law, Unplanned panellist Victoria Hutton having appeared for the successful claimant. However, this coming Tuesday, 3 August 2021, our topic will be ££ affordable workspace in section 106 agreements: Why? how?££ led by my Town Legal colleague Lucy Morton and leading economist Ellie Evans (Volterra) plus other special guests. Join us! Link here.
So friends, here we are, still in the most tedious sequel in the whole franchise: Lockdown 3. Of course, the vaccines will be the eventual way out 💪 this year but can anyone predict how many more months will go by before, in England, we are free from some level of restrictions on our ability to go about our lives?
The planning system has kept going through all of the restrictions of the last ten months, thanks to the determination of local authority staff and councillors, thanks to technology and thanks to the Government in providing for a number of temporary procedural relaxations last Spring. The relaxations were summarised in my 16 May 2020 blog post Stay Alert! A Quick Guide To All Those MHCLG Announcements.
However, there is no reason to be complacent:
⁃ Some temporary measures are due to expire and there is no certainty that they will be extended.
⁃ Covid does not give carte blanche to local authorities to cut corners in their approach to decision making – I deal below with last week’s High Court ruling in relation to Transport for London’s Streetspace plan.
⁃ If initially temporary measures are to be made permanent (rather than just extended to see us through this current saga), that should surely be after careful review and reflection.
I’m going to deal with that last point first. On 16 December 2020 and without prior consultation the Government laid two statutory instruments (Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 and Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020) before Parliament, the effect of which was to make permanent the ability for plan makers and promoters to dispense with making copies of documents physically available for inspection, instead providing them on a website to which consultees are directed, in relation to strategic environmental assessment (i.e. , basically, sustainability appraisals in relation to plans) and in relation to nationally significant infrastructure projects.
“In addition to publishing documents on a public website, responsible authorities (or the Secretary of State, as the case may be) will now be required to: make available a telephone number for the public to raise enquiries in relation to any documentation published; provide by mail hard copies of any documentation upon request, subject to a reasonable charge and provided it is reasonably practicable to do so given precautions and other measures relating to coronavirus; and provide copies of any documentation by email upon request. Guidance will set out that authorities may also offer electronic copies of documents available on USB flash drive to those with access to a computer but without access to the internet, and that they may wish to consider waiving any charge for hard copies of documents to members of the public who are unable to access the documentation electronically or find it difficult to do so.”
Making these changes permanent without consultation was strongly criticised by the House of Lords Secondary Legislation Scrutiny Committee in its 21 January 2021 report. This is the summary at the beginning of the report:
“These two instruments remove permanently publication and publicity requirements for certain planning matters that were suspended temporarily last year to assist authorities in taking forward relevant plans, programmes and projects during the pandemic. The Ministry of Housing, Communities and Local Government (MHCLG) says that it is not aware of any concerns about the changes and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process.
We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information and the ability to make representations for the general public and in particular for vulnerable or disadvantaged groups or those with poor or no internet connection, in relation to important infrastructure, housing or other projects that may impact on them. The House may wish to ask the Government to update Parliament on the impact of the changes. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic.”
In the body of the report:
“Asked why the instruments had not been extended, as other measures dealing with the impacts of the pandemic, MHCLG told us that, in addition to moving towards a digital planning system, making the changes permanent:
“avoided some uncertainty about whether it would be possible to make Regulations providing for a further extension of all of these measures in a timely way in due course. This is because the measures are made in part under the powers set out in section 2(2) of the European Communities Act 1972 and these powers were only available until the end of the EU Exit Implementation Period (11pm on 31 December 2020)”.
We are not convinced by MHCLG’s explanation. The instruments were laid and came into force before the expiry of relevant powers at the end of the Transition Period, suggesting that MHCLG could have chosen to legislate for a further extension, rather than making the changes permanent. The House may wish to press the Minister for further explanation of the Government’s approach.”
“The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.”
MHCLG’s current view is apparently that power to hold virtual meetings cannot be extended without primary legislation to amend section 78 and this may not be possible – see ‘Councillors could be disenfranchised without remote meetings’ (Local Government Chronicle, 21 January 2021).
This could be a real problem and needs to be grappled with now. I would be very pleasantly surprised if normal life has resumed by 6 May to such an extent that everyone is available to attend planning committee and other meetings in the same way as before the pandemic. Let’s be clear, without virtual planning committee meetings, the planning system (at least on any democratic basis, as opposed to wholesale reliance on officers’ delegated powers) would have shut down for the last ten months.
Finally, on the subject of temporary powers and measures:
⁃ I am not aware of any proposal for any extension of the duration of certain planning permissions and consents beyond that provided for in the Business and Planning Act 2020.
Surely it’s going to take some time and evidence-gathering to work out what the benefits of each of these measures have been, what problems may have arisen and which processes and rights (if any) should now be permanently adopted. For instance, for my part, I see great advantages to the inclusivity that has come with virtual planning committee meetings and indeed appeal inquiries and hearings and I hope that we do not return entirely to old ways. However, we should not be bumped into permanent change without that process of reflection.
The judgment deserves a blog post of its own, but the dangers that arise where decisions are made under the justification of Covid but which have more widespread effects which may not have been properly considered are illustrated starkly by the Streetspace case, R (United Trade Action Group & others) v Transport for London (Lang J, 20 January 2021)
This was a challenge by London taxi drivers to the London Streetspace Plan, the related Interim Guidance to Boroughs and the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020.
As summarised by Lang J:
“The Mayor issued the Plan on 6 May 2020, in response to the COVID 19 pandemic. The Guidance was published by TfL on 15 May 2020. Broadly, the aim of the Plan and the Guidance is to facilitate walking and cycling by providing more dedicated road space for pedestrians and cyclists, and “suppressing” motor vehicle traffic, other than buses.”
“The A10 Order is a traffic management order (“TMO”) made by TfL on 16 July 2020, under section 14(1) of the Road Traffic Regulation Act 1984 (the “RTRA 1984”). It is a temporary measure, due to expire by 15 January 2022 at the latest. It imposes extensive restrictions on motor vehicles, other than buses, along the A10 at Bishopsgate and Gracechurch Street in the City of London, from 7 am to 7 pm on weekdays. There are limited exemptions, but not for taxis.”
The judgment contains a detailed account of the effects of Covid lockdown measures on traffic in the City of London and the traffic measures introduced by the Mayor during the period. The contentious nature of decisions which balance priorities as between the use of streets by through traffic and by communities has been one of the political themes of the pandemic, particularly in London. This judgment is going to be carefully scrutinised by all sides in that particular debate. This is an interesting OnLondon piece about the ruling and its implications, High Court ruling means major rethink for Mayor’s ‘seriously flawed’ Streetspace scheme (OnLondon, 21 January 2021) but here are Lang J’s conclusions:
“278. Ground 1: in making and promulgating the Plan and Guidance, the Mayor and TfL failed to distinguish taxis from “general traffic”. In doing so, they failed to have regard to relevant considerations, namely:
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.
However, Ground 1 did not succeed in respect of the A10 Order.
279. Ground 2: In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010.
280. Ground 3: The economic benefits which taxi drivers derive from their statutory licences, which entitle them to ply for hire throughout London, are a “possession” within the meaning of A1P1 ECHR [article 1 protocol 1 of the European Convention on Human Rights], and so A1P1 is engaged. However, because of the way in which this challenge was formulated, and insufficient evidence, the Claimants failed to establish an interference with their possessions by control of use.
281. Ground 4: The Plan and Guidance and the A10 Order breached the Claimants’ legitimate expectation to pass and repass on London’s roads, and to use lanes reserved for buses.
282. Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order was irrational.
283. In my judgment, quashing orders rather than declarations are appropriate because of the nature and extent of the unlawfulness which I have identified, which affects not only taxi drivers, but also their passengers. The Plan, the Guidance and the A10 Order all need to be re-considered by the Defendants and substantially amended in the light of my judgment. To reduce disruption, the Defendants can turn their minds to this task now, on a provisional basis, as there will be a stay and a delay whilst they pursue their appeal. If the appeal is unsuccessful, they can apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders take effect.”
So, watch this (street)space.
In the meantime, another date that is of course looming is 6 May 2021, local government elections. The Government is not presently intending to delay them again. That was particularly clear from MHCLG minister Luke Hall’s 19 January 2021 letter to Croydon Council (again for an explainer about this – campaigners had been pushing the council for a referendum into whether there should be a directly-elected Mayor for Croydon, which the council had been seeking to delay on Covid grounds – see the OnLondon 19 January 2021 piece Croydon: Government tells council it should hold governance referendum on 6 May (OnLondon, 19 January 2021).
Wouldn’t it be fantastic if things were indeed sufficiently normalised by 6 May 2021?! (But, in small font, what if they are not?).
A judgment of the Court of the Appeal yesterday – DB Symmetry Limited v Secretary of State (Court of Appeal, 16 October 2020) – has potentially wide implications.
The court ruled that a condition on a planning permission cannot as a matter of law require land to be dedicated as highway. Unless a realistic interpretation can be given to the condition which avoids that outcome, and if the condition is not considered to be severable from the permission as a whole, in some circumstances the validity of the planning permission may be at risk.
Such a requirement needs instead to be included in that endangered species, the section 106 agreement.
The case arose from the first planning permission to be granted for part of the Swindon New Eastern Villages urban extension (“NEV”), which will eventually comprise 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The planning permission in part authorised the construction of a section of spine road envisaged eventually to connect through the wider development.
The report to committee in relation to the planning application explained “that the application site was part of a wider development proposal. It was to “integrate physically and functionally” with adjoining development. The NEV was to come forward as “a series of new interconnected villages.” Each scheme had to demonstrate how it fitted into the wider NEV. The proposal “must provide connections to future development within the [NEV] in the interests of enabling the comprehensive and sustainable development of the NEV as a whole”.
A condition was attached to the planning permission, condition 39:
“Roads
The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.
Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety.”
The developer took the position that this condition did not require the dedication of the roads as public highway. I do not know why: perhaps wishing to retain greater control over their maintenance as private roads, perhaps wishing to retain the ability to charge a premium to those who might in the future wish to connect into the roads, including other developers.
As explained by Lewison LJ in the judgment, “the developer applied to Swindon for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads as private access roads would be lawful. Swindon refused the certificate; and the developer appealed. On 6 November 2018 Ms Wendy McKay LLB, an experienced planning inspector, allowed the appeal. She certified that the use of the access roads for private use only would be lawful.”
The council challenged the decision and at first instance Andrews J quashed it.
The Court of Appeal disagreed in no uncertain terms, regarding itself as bound by a 1964 Court of Appeal judgment, Hall & Co Ltd v Shoreham by Sea Urban DC:
“In Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240 sand and gravel importers and the owners and occupiers of land in an area scheduled for industrial development, applied for planning permission to develop part of their land for industrial purposes. The land adjoined a busy main road which was already overloaded. The highway authority intended to widen it at a future date and to acquire for that purpose a strip forming part of the developer’s land. The planning authority granted planning permission subject to a condition requiring the developer to “construct an ancillary road over the entire frontage of the site at their own expense, as and when required by the local planning authority and shall give right of passage over it to and from such ancillary roads as may be constructed on the adjoining land.” It is to be noted that the condition did not require the transfer of the land itself.
This court held that the imposition of that condition was unlawful. At 247 Willmer LJ summarised the developer’s argument as follows:
“It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right of passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute.
…
“The defendants would thus obtain the benefit of having the road constructed for them at the plaintiffs’ expense, on the plaintiffs’ land, and without the necessity for paying any compensation in respect thereof. Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended.”
“Harman LJ said at 256: “It is not in my judgment within the authority’s powers to oblige the planner to dedicate part of his land as a highway open to the public at large without compensation, and this is the other possible interpretation of the condition. As was pointed out to us in argument, the Highways Acts provide the local authority with the means of acquiring lands for the purpose of highways, but that involves compensation of the person whose land is taken, and also the consent of the Minister.”
In the light of Hall, Lewison LJ concluded:
“I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition. Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall establishes a recognised principle which is binding on this court.”
“If the judge interpreted [advice in a previous Government circular] as authorising the imposition of conditions which not only required a developer to provide an access road, but also to dedicate it to public use as a highway, I consider that she was wrong. Such an interpretation would be flatly contrary to consistent government policy for nearly 70 years. In my judgment Hall does impose an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission. I also consider, contrary to Mr Harwood’s submission, that there is no difference for this purpose between dedicating a road as a highway and transferring the land itself for highway use. As I have said, the condition in Hall did not require the land itself to be transferred, yet it was still held to be unlawful.”
The reference to “at least at this level in the judicial hierarchy” is interesting – has the council the appetite to apply for permission to appeal to the Supreme Court? Hall was decided in another time and is it right that the operation of conditions should continue to be constrained in this way? Whilst Hall and Symmetry were both cases about conditions that potentially required the dedication of land as highway, the same principle would apply to conditions requiring the dedication, disposal or transfer of land for other purposes, e.g. open space or affordable housing. Care is required! The distinction nowadays between the “imposition” of planning conditions and the “agreement” of section 106 planning obligations is surely somewhat artificial – on major schemes, conditions are negotiated by the parties to almost an equivalent extent as planning obligations may be – and if the applicant isn’t happy with a condition that has been imposed, section 96A and section 73 are always available. Furthermore, Willmer J’s 1964 reference to the relevant condition amounting to a “violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute” looks quaint from a 2020 perspective, where the price of planning permission for any significant scheme entails multiple violations of those so-called “fundamental rights” – and, on proposals within areas allocated for comprehensive development, in my view “anti-ransom” arrangements are essential planning prerequisites – why shouldn’t a condition be enabled to achieve that objective?
Once the Court of Appeal had concluded that the condition could not lawfully have the effect of requiring roads to be dedicated as public highway, it needed to consider whether another interpretation could realistically be given to the condition.
“In her decision letter, the inspector expressed her conclusion at [20] as follows: “Whilst the term “highway” usually means a road over which the general public have the right to pass and repass, the phrase “fully functional highway” cannot be divorced from the beginning of the sub-clause which states “shall be constructed in such a manner as to ensure…”. In my view, Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public. I believe that a reasonable reader would adopt the Appellant’s understanding of the term “highway” as used in the context of the condition with the clear reference to the construction of the roads as opposed to their use or legal status. The distinct inclusion of the term “public highway” in the reason for imposing Condition 39 reinforces my view on that point.”
Lewison LJ:
“I do not think that the judge really appreciated the consequences of her decision. In my judgment, if the judge was right in her interpretation of the condition, the condition (and probably the whole planning permission) is invalid. In those circumstances, the validation principle comes into play. The question, then, is whether the inspector’s interpretation of condition 39 was realistic (even if not the most obvious or natural one).”
“In my judgment, the interpretation adopted by the inspector is, to put it no higher, a realistic one even if it is not the most natural. The validation principle therefore applies; and condition 39 should be given the meaning that she ascribed to it.”
Surely if the court had not managed to get to this interpretation of the condition it would not have quashed the whole consent? For the council that would have certainly been a “You’re only supposed to blow the bloody doors off!” moment.
What if the condition had been negatively worded: not to occupy more than x dwellings until defined roads had been constructed and satisfactory arrangements had been made for their adoption as public highway? Any different outcome?
The obvious practical lesson is to document these sorts of dedication and land transfer requirements other than by condition but let’s see if there’s a further appeal.
How unromantic. To my disappointment, that line from Elizabeth Browning’s poem is not followed by a list of the differences between the section 247 and 257 procedures for stopping up highways.
I need to fill that gap.
After all, the process for stopping up highways in order to enable development to be carried out is a vital corner of our planning system that is particularly dysfunctional and lacking in logic. Perhaps because the process largely comes after the decision as to whether the development itself is to be approved, there is too little focus on whether it is working effectively. The last material change to the procedure was the limited, but welcome, amendment made by way of the Growth and Infrastructure Act 2013, which at least allowed it to commence prior to planning permission being granted.
Section 247 (1) of the Town and Country Planning Act 1990 provides that “the Secretary of State may by order authorise the stopping up or diversion of any highway outside Greater London 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...”
The procedure covers all types of highway.
Section 257 (1) of the Town and Country Planning Act 1990 provides that “[s]ubject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath, bridleway or restricted byway if they are satisfied that it is necessary to do so in order to enable development to be carried out…in accordance with planning permission…”
The procedure just covers footpaths, bridleways and restricted byways.
The substantive test in relation to both processes is whether the stopping up is “necessary” in order to enable the development to proceed and whether stopping up is in the public interest. However, they are administered in very different ways (and the section 247 process is different in London).
(Outside London) a section 247 application is made by the developer to the Secretary of State for Transport, and is administered by the Department for Transport’s National Transport Casework Team in Newcastle. The casework team’s guidance indicates that the “Department aims to process Orders where there are no objections within 13 weeks from receipt of all necessary information.”
If there are objections following publicity for the application, the Secretary of State considers in his discretion whether an inquiry is to be held. If an inquiry is to be held, there are no procedural rules which govern the process. The inspector is appointed by the DfT and reports to the Secretary of State for Transport, who makes the final decision.
(In London, section 247 order applications are made by the developer to the relevant borough.
If objections are received and cannot be resolved, the application is referred to the Mayor of London, who either decides that under section 252 (5A) that “in the special circumstances of the case” an inquiry is unnecessary, in which case the borough may confirm the order, or that inquiry is necessary, in which case the borough must cause an inquiry to be held.)
A section 257 application is made by the developer to the local planning authority, following the form set out in the Town and Country Planning (Public Path Orders) Regulations 1993. If there are objections following publicity for the application, section 259 and schedule 14 of the Town and Country Planning Act 1990 require that the application must be referred by the local planning authority to the Secretary of State for Environment, Food and Rural Affairs (although in practice by way of reference to the Planning Inspectorate’s rights of way section).
Unless each objector indicates that he or she doesn’t wish to be heard in front of an inspector, PINS will either arrange a hearing or a public inquiry. There are set timescales for the relevant stages. For a hearing, each party wishing to give evidence must provide a statement of case within 12 weeks of the start date. The hearing should generally take place within 20 weeks of the start date. For an inquiry, the parties must provide their statements of case within 14 weeks of the start date and proofs of evidence must then be provided at least four weeks before the start of the inquiry, which should generally be not later than 26 weeks after the start date.
Not only is it odd that the Planning Inspectorate has no discretion to decide that an opposed application be determined by written representations unless all objectors agree (contrast with section 247 but also with the powerless position of an appellant in relation to a section 78 appeal) but these timescales are way out of kilter with modern, post Rosewell, inquiry timescales, where statements of case are due within five weeks of the start date and the inquiry will generally be within 13 to 16 weeks of the start date.
There is a further sting in the tail: The Planning Inspectorate’s procedural guidance warns:
“Having received an order from a local authority, we aim to issue the notice containing the ‘start date’ to all the parties within 10 weeks.”
Ten weeks! That is often by definition ten additional weeks on the post permission, pre construction, timeline for a project.
So a section 257 order is likely to take around 36 weeks to get to inquiry…
The only good news is that (another difference between section 247 and 257 orders), the inspector can make the final decision in relation to section 257, so there is no further delay caused by waiting for the Secretary of State to consider his or her report.
In conclusion, there are unjustified differences between what should be very similar processes:
⁃ No overall statutory procedural framework (no procedural rules in relation to section 247; out of date procedural rules in relation to section 257, in terms of leisurely time limits and limited scope for determining that a written representations procedure is adequate)
⁃ No single decision-maker (two different Secretaries of State – and in London the Mayor’s role in relation to section 247 – and section 257 decisions are taken by the relevant inspector rather than needing to be referred to the Secretary of State).
⁃ No single body administering the process (DfT National Transport Casework Team vs Planning Inspectorate rights of way section).
In relation to both processes I would go further: As long as there are appropriate safeguards for those affected and with suitable requirements as to consultation and publicity, surely a local planning authority, at the same time as determining any planning application for development, should be able to approve any highways closures that are required in order for that development to be carried out? Otherwise, the issues are artificially divided, in a way that is particularly confusing for objectors, between two processes (planning and stopping up) which still have to run largely one after the other?
How do I love thee (sections 247 and 257)? Let me count the ways (not).
SIMONICITY 