Beckley Parish Council v Secretary of State for Transport & Ors

Section 252(8) of the Town and Country Planning Act 1990 gives the Secretary of State a broad power to modify a draft stopping-up order. The power is not confined to trivial changes, and guidance cannot fetter it. However, a proposed alteration may be so fundamental that it is no longer a modification and must be dealt with as a new order.

Whether an alteration falls within that statutory description is ultimately a question of law. The exercise of the discretion to make the modification is reviewed on traditional Wednesbury grounds. Fairness requires sufficient opportunity for affected persons to understand and challenge the proposed change. An order may remain valid where its operation is conditional on completion of replacement highway works, even if the planning basis for those works requires further consideration.

The claimant challenged, under section 287 of the Town and Country Planning Act 1990, an order made by the Secretary of State stopping up a byway open to all traffic in Beckley. The order replaced it with a wider three-metre bridleway for pedestrians, cyclists and equestrians.

The claimant argued that the alterations to the advertised draft were substantive. It contended that the Secretary of State should have re-advertised the proposal, allowed the statutory objection period and held a further inquiry. A further issue concerned whether the replacement bridleway could lawfully be constructed under the General Development Order. The central questions were whether the changes were lawful modifications under section 252(8), and whether the stopping-up order was otherwise valid.

1. The claim was dismissed. The Secretary of State was entitled to make the stopping-up order incorporating the proposed changes.
2. Section 252(8) of the Town and Country Planning Act 1990 confers a discretion wider than a power to make merely trivial alterations. A circular cannot fetter that statutory discretion, so there could be no legitimate expectation that every modification would require the full public notice procedure again.
3. The word modification nevertheless has an implicit limit. If an alteration completely transforms the original proposal, it cannot lawfully be treated as a modification. Whether a change falls within that statutory term is a question of law. The court must pay respectful attention to the Secretary of State’s judgment and reasons, but the final classification is for the court.
4. Once the change is classified as a modification, the Secretary of State’s decision whether to make it and the precise form it should take are reviewed on traditional Wednesbury grounds. The relevant considerations include whether relevant matters were taken into account, irrelevant matters excluded, and a rational decision reached.
5. The alterations remained modifications. The essential purpose remained the stopping up of the BOAT. The replacement path remained substantially similar, although it was widened and redesignated as a bridleway. The claimant had notice well before the inquiry, represented the local community, and had ample opportunity to make objections during the adjourned inquiry. The changes therefore did not unfairly curtail the opportunity to object.
6. The argument concerning the General Development Order did not invalidate the order. The court made no decision on whether that Order authorised the works. The stopping-up order was conditional: the BOAT could not be stopped up until the replacement highway works, including the three-metre bridleway, had been completed to the County Council’s reasonable satisfaction.

The order was therefore valid and the appeal was dismissed. No order was made as to costs because the successful Secretary of State had not provided the costs schedule required for summary assessment.

The judgment describes the matter as an appeal under section 287 of the Town and Country Planning Act 1990 against the Secretary of State’s stopping-up order dated 13 August 2009. Separate judicial review proceedings concerning the planning permission and a section 278 agreement had previously been refused permission by Mr Ockelton, sitting as a Deputy High Court Judge, on 9 January 2009. The present claim was dismissed.