Kirklees Council v Secretary of State for Transport

A court must make a substantive judicial determination before granting a quashing order or declaration in judicial review, even where all parties agree. An oral hearing is not necessarily required. An interested party is a party to the claim and has procedural rights, including participation in contested issues and, where required, signature of an agreed paper disposal.

Under the Town and Country Planning Act 1990, a local authority objection to a stopping-up order triggers the statutory requirement for a local inquiry. The decision-maker must also consider legally relevant matters concerning the provision of another highway. An unlawfully made stopping-up order should not be left in force merely because safety concerns might arise under a separate statutory regime.

The Secretary of State made the Stopping Up of Highway (Yorkshire & The Humber) (No. 5) Order 2023 under section 247 of the Town and Country Planning Act 1990. The Order authorised stopping up part of a highway to enable development.

Kirklees Council challenged the Order under section 287. It argued that its objection was a local authority objection requiring a local inquiry under section 252(4), and that the Secretary of State had wrongly treated the provision of a replacement highway as irrelevant. The Secretary of State accepted both grounds. One interested party resisted immediate quashing and sought a deferred order. The issues were whether the Order was unlawful and whether quashing should be deferred.

1. The Order was quashed. The Court was required to make its own substantive evaluative judgment before granting a quashing order, notwithstanding the parties’ agreement. The need for judicial adjudication did not require an oral hearing.
2. The procedural principles were supported by R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) and R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin). An agreed substantive order could be made on the papers only if the Court was satisfied that it should be made and the required parties had agreed to the process and terms.
3. The Council had made an objection which had not been withdrawn. Its objection concerned public rights of way and whether a replacement highway should be provided. It therefore fell within section 252(4) and (5) of the Town and Country Planning Act 1990. The Secretary of State could not make the Order without first holding a local inquiry.
4. The Secretary of State had also erred in treating replacement-highway information as irrelevant. The phrase concerning the provision of any other highway in section 247(2) reflected a legally relevant matter that had to be considered when deciding whether a stopping-up order was justified.
5. There was no basis for deferring the quashing order. The Order had been made in breach of the empowering Act and in disregard of a statutory relevancy. Safety concerns did not justify leaving an unlawful stopping-up order in force, and any separate safety issue fell to be considered, if appropriate, under the powers of the Road Traffic Regulation Act 1984.
6. The Order was quashed with immediate effect. By consent, the Secretary of State was ordered to pay the Council’s costs of £12,000 within 28 days. The Court deferred determination of the additional costs applications against the interested party pending written submissions.

First-instance statutory review in the High Court. No prior appellate decision was stated in the judgment.