Powergen Plc, R (on the application of) v Warwickshire County Council

Where highway safety and detailed access works are central to a planning application, and the Secretary of State grants permission after fully hearing and rejecting the highway authority’s objections, the authority cannot refuse a necessary agreement under section 278 of the Highways Act 1980 merely by repeating those objections. In the absence of materially changed circumstances, the appeal decision supplies the only properly tenable view of road safety and public benefit. Withholding agreement on the original grounds is irrational.

A fresh objection may justify reconsideration only if it is sufficiently different to create a realistic prospect that it might have prevailed on the planning appeal.

Powergen obtained outline planning permission on appeal for a supermarket development. The proposed access and associated highway works were detailed parts of the application. After a public inquiry, at which the highway authority gave evidence, the Inspector rejected its road-safety objection and imposed a condition requiring specified bridge, junction and pedestrian works.

Implementation required Warwickshire County Council to undertake the works under an agreement pursuant to section 278 of the Highways Act 1980. The council refused because it continued to regard the access arrangements as unsafe. Forbes J allowed Powergen’s judicial review claim and held that the refusal was irrational.

The council appealed. The central issue was whether a highway authority retained an independent discretion to repeat an unsuccessful road-safety objection and refuse the agreement needed to implement permission granted by the Secretary of State.

1. Appeal dismissed unanimously. Simon Brown LJ delivered the judgment, with which Otton and Mummery LJJ agreed. Where detailed access works and their safety implications were central to the planning application, were fully examined on appeal, and were resolved in the developer’s favour, the highway authority had no option but to cooperate by entering the necessary agreement under section 278 of the Highways Act 1980.

2. The authority’s continued refusal was irrational. Its evidence and objections had been fully considered by an independent Inspector. There were no new facts or changed circumstances, and the refusal rested on the identical safety grounds rejected on appeal. In those circumstances, the Inspector’s conclusion became the only properly tenable view of road safety and was determinative of public benefit.

3. The conclusion was confined by three considerations. The access and highway works were critical to the application and had not been reserved for later consideration. Permission had been granted by the Secretary of State on appeal, rather than by the local planning authority over the highway authority’s objection. Finally, no materially new objection had emerged after the appeal.

4. A highway authority wishing to rely upon changed circumstances would need to advance an objection sufficiently different from the rejected objection to create a realistic prospect that it might have prevailed before the Secretary of State. That initial assessment would be for the authority, subject to judicial review. This guidance was adapted from Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370.

5. The planning permission did not itself supply the separate statutory approval required under section 278. It instead meant that, in these circumstances, such approval could not lawfully be withheld. The authority should participate fully in the planning process and could not reserve an effective veto by repeating the same objection afterwards.

1. Court of Appeal (Civil Division): The highway authority’s appeal was dismissed unanimously. The order requiring it to bear the costs was maintained, and leave to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Forbes J allowed Powergen’s judicial review challenge on 9 January 1997. He held that refusing an agreement under section 278 of the Highways Act 1980 solely on safety grounds already determined in the planning appeal was irrational.
3. Secretary of State’s planning appeal: An Inspector allowed Powergen’s appeal under section 78 of the Town and Country Planning Act 1990 and granted conditional outline planning permission after rejecting the highway authority’s road-safety objection.