R (on the application of Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Flaux,Lord Justice Lindblom,Lord Justice Lewison
Judgment Date21 September 2018
Neutral Citation[2018] EWCA Civ 2069
Docket NumberCase No: C1/2017/2665
Date21 September 2018

[2018] EWCA Civ 2069

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE HOLGATE

[2017] EWHC 2259 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Lindblom

and

Lord Justice Flaux

Case No: C1/2017/2665

Between:
R. (on the application of Network Rail Infrastructure Ltd.)
Respondent
and
Secretary of State for Environment, Food and Rural Affairs
Appellant

Mr Tim Buley (instructed by the Government Legal Department) for the Appellant

Mr Juan Lopez (instructed by Womble Bond Dickinson (UK) LLP) for the Respondent

Hearing date: 19 June 2018

Judgment Approved by the court for handing down (subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

Did a planning condition prevent a stopping-up order being confirmed by the Secretary of State for Environment, Food and Rural Affairs under section 259 of the Town and Country Planning Act 1990 because it contemplated the development going ahead even if the order was not confirmed? That is the basic question in this appeal.

2

With permission granted by Lewison L.J. on 3 November 2017, the appellant, the Secretary of State, appeals against the order of Holgate J., dated 8 September 2017, upholding a claim for judicial review by the respondent, Network Rail Infrastructure Ltd., in which it challenged an inspector's decision, in a decision letter dated 4 January 2017, refusing to confirm the Eden District Council Public Path Stopping Up Order (No. 1) 2015 Cross Croft, Appleby (footpath 303028) (“the Order”).

3

The Order had been made by Eden District Council, the local planning authority, on 22 April 2015. In making the Order the council had stated itself to be satisfied that it was necessary to stop up the footpath to enable development to be carried out in accordance with a planning permission it had granted for the construction of 142 dwellings on land adjacent to Cross Croft in Appleby. The site of the development lies to the south-west of the Settle to Carlisle railway line, a short distance to the south of Appleby station. The developer, and applicant for planning permission, is Story Homes Ltd..

4

The relevant planning permission, granted on 9 March 2016, was subject to a condition – condition 13 – restricting development to no more than 64 specified dwellings unless the circumstances in either of two “exceptions” should occur. The first “exception” was that a stopping-up order – diverting the footpath, stopping it up to prevent access to a railway crossing, and re-routing it to the north- east – had been made and confirmed. The second was that the Secretary of State did not confirm the Order.

5

Objections were made to the Order. An inquiry was duly held, on 29 November 2016. On a preliminary issue, the inspector concluded that condition 13 permitted the whole development to be carried out, regardless of whether the Order was confirmed, and therefore that it could not be necessary to divert the footpath to enable development to be carried out.

6

Holgate J. quashed the inspector's decision, on the basis that the inspector had misunderstood the true relationship between condition 13 and the provisions in sections 257 and 259 of the 1990 Act and had failed to address the questions he was obliged to consider under those provisions.

The issue in the appeal

7

The main issue in the appeal is whether, contrary to the judge's conclusion, the inspector's decision was a lawful exercise of his statutory power under section 259 of the 1990 Act, because condition 13, properly construed, negated the requirement that the confirmation of the Order was “necessary … in order to enable the development to be carried out … in accordance with the permission”.

8

In its respondent's notice, Network Rail contends, first, that the inspector acted in breach of natural justice and unfairly in reaching his decision solely on the preliminary issue, without hearing the evidence on railway safety; and secondly, that he ought to have considered the case for confirmation on its merits, and that his decision was irrational. Those issues, as the parties agree, hang on the outcome of the main issue in the appeal.

The statutory powers

9

Section 257 of the 1990 Act provides:

“(1) Subject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath … if they are satisfied that it is necessary to do so in order to enable development to be carried out –

(a) in accordance with planning permission granted under Part III …

(1A) Subject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath … if they are satisfied that –

(a) an application for planning permission in respect of development has been made under Part [III], and

(b) if the application were granted it would be necessary to authorise the stopping up or diversion in order to enable the development to be carried out.

(2) An order under this section may, if the competent authority are satisfied that it should do so, provide –

(a) for the creation of an alternative highway for use as a replacement for the one authorised by the order to be stopped up or diverted, or for the improvement of an existing highway for such use;

(4) In this section “competent authority” means –

(a) in the case of development authorised by a planning permission, the local planning authority who granted the permission …

…”.

10

Section 259 provides:

“(1) An order made under section 257 … shall not take effect unless confirmed by the appropriate national authority or unless confirmed, as an unopposed order, by the authority who made it.

(1A) An order under section 257(1A) may not be confirmed unless the appropriate national authority or (as the case may be) the authority is satisfied –

(a) that planning permission in respect of the development has been granted, and

(b) it is necessary to authorise the stopping up or diversion in order to enable the development to be carried out in accordance with the permission.

(2) The appropriate national authority shall not confirm any order under section 257(1) … unless satisfied as to every matter as to which the authority making the order are required under section 257 … to be satisfied.”

(5) The appropriate national authority, for the purposes of this section, is –

(a) in relation to England, the Secretary of State …

…”.

11

Powers for the stopping-up and diversion of highways are also contained in Part VIII of the Highways Act 1980. Sections 118A and 119A of the 1980 Act provide, respectively, for the stopping-up and diversion of footpaths crossing railways. Section 119A provides for the making of a “rail crossing diversion order” by a council “where it appears to a council expedient in the interests of the safety of members of the public using it or likely to use it that a footpath … in their area which crosses a railway, otherwise than by tunnel or bridge, should be diverted …” (subsection (1)). The Secretary of State must not confirm a rail crossing diversion order, and a council must not confirm such an order as an unopposed order, unless satisfied that it is “expedient to do so having regard to all the circumstances”, including “(a) whether it is reasonably practicable to make the crossing safe for use by the public …” (subsection (4)).

12

In the light of relevant authority, it was agreed before us that the provisions of sections 257 and 259 of the 1990 Act, under which the Secretary of State has a discretion to confirm or not to confirm a lawfully made stopping-up order, oblige him to decide whether the stopping-up or diversion is necessary to enable the development to proceed and whether, on its merits, the order should be confirmed, an exercise that will involve a consideration of the public interest in the order being confirmed or not. Holgate J. referred to these two questions as, respectively, the “necessity test” and the “merits test” (in paragraph 49 of his judgment).

13

It was also common ground, and I accept, that the requirement of “necessity” for the making and confirmation of an order under sections 257 and 259 may be satisfied by the existence of either a physical or a legal obstacle to the development proceeding. A physical obstacle would be, for example, some practical impediment to the development proceeding – typically, a footpath running across a development site that would make it impossible for the proposed development to be carried out without its being stopped-up or diverted. A legal obstacle could be a “Grampian”, or negative, condition preventing the development being carried out, in whole or in part, until an order stopping-up or diverting a footpath had been made and confirmed, and the footpath had then been stopped-up or diverted (see the speech of Lord Keith of Kinkel in Grampian Regional Council v City of Aberdeen District Council (1984) 47 P. & C.R. 633, at p.637).

14

In Vasiliou v Secretary of State for Transport (1991) 61 P. & C.R. 507, a case concerning the scope and operation of the provisions then in section 209 and 215 of the Town and Country Planning Act 1971, Nicholls L.J., as he then was, observed (on p.510) that “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”. As he said (on p.512):

“These sections confer a discretionary power on the Minister. 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. …”.

15

Nicholls L.J....

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