K. Vasiliou v Secretary of State for Transport and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NICHOLLS,SIR ROUALEYN CUMMING-BRUCE,LORD JUSTICE MUSTILL |
| Judgment Date | 12 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0712-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 1990 |
| Docket Number | 90/0645 |
[1990] EWCA Civ J0712-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE HODGSON
Royal Courts of Justice
Lord Justice Mustill (Not Present)
Lord Justice Nicholls
Sir Roualeyn Cumming-Bruce
90/0645
In The Matter of Part X of The Town and Country Planning Act 1971.
and
In The Matter of The Tribunals and Inquiries Act 1971
and
MR JOHN BARRETT (instructed by Messrs Walker Morris Scott Turnbull) appeared on behalf of the appellant.
MR THOMAS HILL (instructed by The Treasury Solicitor) appeared on behalf of the first respondent.
MR DAVID FRIEDMAN Q.C. (instructed by Messrs Saunders Sobell Leigh & Dobbin) appeared on behalf of the second respondent.
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 yards from Blackpool Tower, and about the same distance from the sea-front promenade. It is some 16 feet or so wide and about 70 yards 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 and County Land Company Limited 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 7 shops fronting onto Victoria Street, and abutting, at one side, onto 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 onto 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 the 6th January 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 Transport 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 from Victoria Street to Church Street, or vice versa, would be able to go by an alternative route, along Corporation Street. The additional walk, of some 90 yards, 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 per cent and 70 per cent 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 paragraph 5 of his decision letter dated the 24th February 1989, the Minister 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 paragraph 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 the 14th December 1989 Hodgson J. dismissed Mr. Valisiou's application. The judge held that the Secretary of State for Transport 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. 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...
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