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

A planning condition in “Grampian” form may make a stopping-up order legally necessary even where it provides for development to continue if the order is not confirmed. The condition must be read as a whole and in its statutory context, giving effect to its evident purpose where its language permits. Where alternative outcomes of a condition both require a statutory stopping-up process before restricted development can proceed, the necessity and merits questions under the Town and Country Planning Act 1990 are for the statutory decision-maker. The condition must not be construed as predetermining the result or making consideration of the order’s merits futile.

A local planning authority granted permission for 142 dwellings near a railway crossing. Condition 13 restricted development beyond 64 dwellings unless a footpath diversion and stopping-up order was confirmed, or the Secretary of State declined to confirm it. The authority made an order under sections 257 and 259 of the Town and Country Planning Act 1990.

An inspector decided the preliminary issue without hearing evidence and refused to confirm the order, reasoning that the development could proceed if confirmation was refused. Holgate J quashed that decision: [2017] EWHC 2259 (Admin). The Secretary of State appealed. The central issue was whether condition 13 made confirmation unnecessary and therefore prevented the statutory merits assessment.

Appeal dismissed. Lindblom LJ gave the leading judgment, with Flaux LJ agreeing. Lewison LJ dissented.

1. The correct approach to interpreting a planning condition is objective and contextual. The court considers the natural and ordinary meaning of the words, the permission as a whole, the condition’s purpose, other relevant conditions and common sense. Where possible, it should avoid a construction that defeats the evident purpose of the condition or renders it ineffective. This approach was supported by Fawcett Properties Ltd. v Buckinghamshire County Council [1961] A.C. 636 and Trump International Golf Club Scotland Ltd. v Scottish Ministers [2016] 1 W.L.R. 85.
2. Condition 13 contained two connected “Grampian” restrictions. The first prevented construction of the residual dwellings until the statutory process had been completed and its outcome was known. The second restricted occupation if the order was confirmed until the diverted route was completed and available. Both exceptions therefore required the stopping-up order to be made and considered.
3. Under sections 257 and 259 of the Town and Country Planning Act 1990, the necessity and merits questions were to be considered together. The order was necessary while the residual development remained prohibited. If the merits justified confirmation, confirmation remained necessary to enable the development to proceed in accordance with the permission. If the merits did not justify confirmation, necessity ceased at that point. Condition 13 did not predetermine the statutory decision.
4. The inspector’s interpretation treated the second exception as freestanding, gave no effect to the first and short-circuited the merits assessment. His decision was therefore unlawful. The respondent’s notice required no separate determination.
5. Lindblom LJ observed obiter that the rail-crossing diversion procedure under section 119A of the Highways Act 1980 might have been more appropriate, but that did not make the council’s chosen procedure wrong. Lewison LJ considered that the necessity requirement could never be satisfied because the development could proceed whichever way the inspector decided, and would have allowed the appeal.

The judge’s order was upheld.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and upheld the order below.
• Administrative Court, Planning Court: Holgate J upheld the judicial review claim and quashed the inspector’s decision: [2017] EWHC 2259 (Admin).