Batchelor Enterprises Ltd v Secretary of State for the Environment, Transport and Regions

When deciding whether to make a stopping-up order, the Secretary of State exercises a separate statutory discretion from the planning authority’s decision to grant planning permission. The stopping-up process must not become a rerun of the essential planning merits, but the Secretary of State may consider the road-safety consequences of the proposed order. That is so even where the planning and highway authorities have previously considered safety issues. An error concerning the materiality of an earlier view will not justify permission to appeal where the inspector’s detailed analysis shows no real prospect that the outcome could have differed.

The applicant sought a stopping-up order under Town and Country Planning Act 1990, section 247, to facilitate residential development in Dorset. The inspector and the Secretary of State accepted that the statutory condition for exercising the power was met, but refused the order because the resulting highway arrangement created serious safety risks.

Sullivan J refused permission to bring judicial review proceedings. On renewed application, the applicant argued that highway safety had already been considered at the planning stage and that the inspector wrongly disregarded the county council officers’ earlier view that the arrangement was acceptable.

1. Application refused. Lord Justice Keene delivered the first judgment, with which Lord Justice Schiemann agreed. There was no real prospect of success.
2. The Secretary of State has a discretion under section 247 of the Town and Country Planning Act 1990, reflected in the words that he “may authorise if he is satisfied”. The stopping-up procedure is not intended to reopen the essential planning merits considered when permission was granted. That does not prevent consideration of the consequences of the proposed order for highway safety.
3. The Secretary of State’s discretion is separate from that of the planning authority and the local highway authority. As the Minister responsible for the highway network, he must be able to take road safety into account irrespective of the views previously expressed by those authorities. Some overlap between planning considerations and section 247 considerations is legitimate. No distinction between direct and indirect consequences was warranted.
4. The inspector was wrong, on the assumed strict Wednesbury interpretation, to describe the county council officers’ earlier views as immaterial. Even so, his report contained a thorough and detailed examination of the objective highway hazards. There was no reason to believe that taking account of the earlier view could have altered his value judgments or conclusion that the reduced sight lines were unacceptable.
5. The renewed application was dismissed. There was no order for costs.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; no order for costs.
• Administrative Court, Queen’s Bench Division: Sullivan J refused permission to bring judicial review proceedings.