Network Rail Infrastructure Ltd, R (On the Application Of) v The Secretary of State for the Environment, Food And Rural Affairs

For an order stopping up or diverting a public right of way, the statutory necessity test asks whether the order is required in the circumstances to enable development to be carried out in accordance with the planning permission. The relevant permission, including its conditions and approved drawings, must therefore be considered. A negative Grampian condition can itself satisfy the necessity test.

Where the condition provides alternative outcomes depending on whether the order is confirmed, the possibility that the order may ultimately fail the merits test does not make it unnecessary from the outset. Necessity and merits may need to be considered alongside each other. A decision-maker must not determine the matter solely on a misconstruction of the condition and thereby avoid considering the merits of the order.

Network Rail challenged the Inspector’s decision not to confirm a public path stopping-up and diversion order made by Eden District Council under section 257 of the Town and Country Planning Act 1990. The order related to a housing development of up to 142 homes and had been made to give effect to a negative Grampian condition addressing safety concerns at a railway crossing.

By the time of the inquiry, the developer was relying on a later planning permission. Its condition restricted construction beyond 64 homes unless either a stopping-up order was confirmed or the Secretary of State decided not to confirm it. The Inspector treated the second alternative as meaning that the development could proceed irrespective of confirmation and therefore concluded that the order was unnecessary. The central issue was whether that construction was correct and whether the Inspector could determine the matter without considering the merits of the order.

1. The claim succeeded in part. The Inspector’s decision dated 4 January 2017 was quashed. The question whether the order should be confirmed was remitted for determination by a different Inspector.
2. Under section 257(1) of the Town and Country Planning Act 1990, “necessary” means required in the circumstances of the case, rather than essential or indispensable. The circumstances include the relevant terms of the planning permission, including its conditions and approved drawings. A later permission may therefore be relevant to the application of the necessity test.
3. A Grampian condition can satisfy the necessity test. The restriction in the later permission prevented construction of the residual 78 homes unless one of two stated exceptions applied. Exception (i), requiring a stopping-up order to be made and confirmed, was a conventional Grampian mechanism. Exception (ii), referring to the Secretary of State’s consideration of the same lawfully made order, was linked to exception (i) and dealt with the opposite outcome.
4. The possibility that the order might not be confirmed did not make it unnecessary from the outset. Until the merits of the order had been considered, the restriction remained operative. The necessity test and the merits test identified in Vasiliou v Secretary of State for Transport (1991) 61 P&CR 507 could operate alongside each other.
5. The Inspector therefore erred in law by treating the condition as permitting the whole development irrespective of confirmation. He failed to recognise that the condition required consideration of whether the order should be confirmed on its merits, including the disadvantages and advantages flowing from the proposed stopping up and diversion. That error was sufficient to require reconsideration.
6. A preliminary issue may properly determine a statutory matter in limited cases, such as where the decision-maker lacks jurisdiction. Where statutory validity is inseparable from the merits, however, the issue is generally unsuitable for determination before the evidence and submissions have been received. The Inspector’s procedure was defective in any event because it resulted from the legal error identified above.
7. The remaining grounds, including challenges concerning the later permission, the Inspector’s factual conclusions and the alleged failure to consider the physical consequences of the development, were rejected.

First-instance judicial review. The Inspector’s decision dated 4 January 2017 was quashed and the confirmation issue was remitted to a different Inspector.