Winchester Vacancies

Cornerstone Planning

The Planning Court on Grampian conditions

Checklist 2 146x219A Planning Court judge has recently handed down an important ruling on Grampian conditions. Dalee Kaur and Rachel Holt analyse the outcome.

Summary

  • Inspectors will have to be more careful when determining a "preliminary issue" at a hearing to ensure that the issue is strictly one suitable for consideration as a preliminary issue and that they have followed the correct procedure.
  • When deciding whether to confirm an order under section 257 of the Town and Country Planning Act 1990, the Secretary of State must be satisfied that the proposed order passes both the "necessity" and the "merits" tests.
  • Where a Grampian condition provides for a restriction on development to be lifted where a stopping order is made but not confirmed by the Secretary of State, this does not mean the necessity test cannot be satisfied. If part of a development is prohibited until a stopping up order is made (but not necessarily confirmed), this is sufficient to make the stopping up order necessary for the purposes of section 257.

Case synopsis

In R (on the application of Network Rail Infrastructure Ltd) (Claimant) v Secretary of State for the Environment, Food & Rural Affairs (Defendant) & (1) Eden District Council (2) Story Homes Ltd (Interested Parties) [2017] EWHC 2259 Network Rail challenged the decision of a planning inspector to refuse to grant an order under section 257 of the Town and Country Planning Act 1990 (the "Act") to stop up a public path in Appleby. The inspector's approach was found to be flawed and his decision quashed after the Court found he was wrong in his interpretation and application of a Grampian condition (also known as the exceptions) attached to a planning permission.

The case related to a planning permission to build up to 142 houses. The planning permission was subject to a Grampian condition which stated that no more than 32 dwellings could be constructed until a stopping up order, relating to the diversion and stopping up of a footpath crossing over an existing railway line, was made under section 257, and confirmed. An application under section 73 of the Act, which was subsequently granted, amended the trigger of the Grampian condition to no more than 64 dwellings and stated that the restriction could be lifted if either of the following exceptions applied:

"i)        a footpath diversion and stopping up order that incorporates the diversion of the existing footpath […], the stopping up of it to prevent any access to the Carlisle-Settle public railway crossing from the site […] and re-routing of the footpath […] has 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." (Emphasis added.)  

Therefore, the Grampian condition restricted the delivery of no more 64 dwellings until the stopping up order had been made and confirmed, or where the Secretary of State decided that the order should not be confirmed. This is different to the Grampian condition attached to the previous planning permission, which placed the restriction of 32 dwellings.  

In considering the exceptions the Court referred to two tests. It was established that an order cannot be made or confirmed unless (a) is it necessary (the "necessity test") and (b) the merits of the order are considered to be more significant than any objections to the order being made (the "merits test"). The necessity test is satisfied where a planning permission exists for the development, and it is necessary to authorise the stopping up (or diversion) of the public right of way by the order to enable that development to take place in accordance with the permission. That said, even if the Secretary of State is satisfied, he is not obliged to confirm the order and has discretion whether or not to do so. In exercising his discretion the Secretary of State is obliged as part of the "merits test" to take into account any significant disadvantages or losses that flow directly from the order that have been raised through objections. He must then decide if the disadvantages or losses are of such significance that he should refuse to make the order.

The interpretation of the exceptions were raised before the inspector prior to the commencement of the public inquiry to consider the order. Evidence was raised that the condition in question removed the necessity for the grant of the order, as the proposed development could come forward whether or not the order was granted. The inspector considered this as a "preliminary issue", refused to hear any evidence of the merits of the order (i.e. the merits tests) and closed the inquiry. He then refused to grant the order on the basis that the test of necessity was not met. However, the Court confirmed that this approach was incorrect in light of the necessity and the merits test. Given that the inspector did not consider the necessity and merits test he failed to give effect to the first exception of the Grampian condition. He failed to recognise that it remained a Grampian restriction which made the stopping up order necessary, at least until the outcome of the merits test was known and either of the exceptions applied. If the merits test is not satisfied, and the order cannot be confirmed at that point, and not at an earlier stage, the order ceases to be necessary to enable the residual development to be carried out in accordance with the permission. As such, under both exceptions, the necessity and merits tests have to be considered alongside each other. It is incorrect to suggest that the two tests are distinct and should be considered separately.  

In light of the inspector's flawed approach, the Court decided that it was necessary to request the Planning Inspectorate to issue guidance on (or review existing guidance to make clear) the circumstances in which it is appropriate to determine "preliminary issues" and, in such circumstances, what should be the correct procedure for that determination.

This case is a useful reminder for practitioners and developers when dealing with applications under section 257. It emphasises:

  1. the correct procedure for the determination of preliminary issues. The Court noted that it was unusual for an inspector or the Secretary of State to dispose of an entire process by reference to a preliminary issue unless there were "proper" arguments relating to a lack of jurisdiction to determine the issue at hand. Instead, the Court emphasised that preliminary issues must be identified precisely in advance and the parties must be notified and invited to prepare and exchange written arguments to address any preliminary issues ahead of a scheduled hearing (which is considered the normal practice);
  2. the requirements for confirming an order made under section 257 of the Act. The necessity test is a pre-requisite for confirming an order under section 257, but it is not an initial hurdle that must be cleared before the merits of the order may be considered. The Court suggested that the issue of whether or not to make or confirm an order is often inseparable from the merits of the order and, as such, a decision cannot be made until all of the merits have been considered by the decision-maker; and
  3. the necessity test does not require an order under section 257 to be indispensable in order for the development to proceed, but rather "required in the circumstances of the case". Where a stopping up order is necessary to enable development to be carried out in accordance with a planning permission, the terms of the planning permission are relevant to the consideration of the necessity test.

The Court explained that the language in exception (ii) is tied to exception (i) and the two must be read together. Both exceptions require a stopping up order to be lawfully made before the remaining houses can be built. Therefore both exceptions satisfy the necessity test. Where they differ is that exception (i) has effect where the merits test has been satisfied and the order confirmed but exception (ii), by contrast, applies where the merits test has not been satisfied and the order is not confirmed. The drafting of the Grampian restriction is such that the stopping up order is necessary until the outcome of the merits test is known. Therefore it was wrong for the inspector to determine this without consideration of the evidence relating to the merits of the stopping up order.

Dalee Kaur is a legal director and Rachel Holt is an associate in the planning team at DLA Piper. Dalee can be contacted on 020 7796 6478 or This email address is being protected from spambots. You need JavaScript enabled to view it..