John Lund v The Secretary of State for Housing, Communities and Local Government & Anor

When assessing whether development access can be secured by a negatively worded Grampian condition requiring highway works, the practical likelihood of a highway authority exercising discretionary statutory powers is a material planning consideration. That includes landowner objections, the need for member approval and the authority’s stated position. The relevant policy question is whether there are no prospects at all of the action being performed within the permission’s time limit. A unilateral undertaking to fund works does not compel the authority to exercise its powers or remove practical uncertainties. An inspector’s evaluative conclusion will not be irrational merely because the authority continues to explore options.

The claimant, Mr John Lund, sought permission under the Town and Country Planning Act 1990, section 288, to challenge an Inspector’s decision dismissing his appeal against Kirklees Metropolitan Borough Council’s refusal of planning permission for 33 dwellings. Access required improvements to part of Oddfellows Street, including an unadopted and unlit section. The claimant proposed a unilateral undertaking and argued that works could be secured through powers under the Highways Act 1980, sections 205–208.

The Inspector found no prospect of the works being completed within the typical three-year permission period, having regard to landowner objections, the need for member approval and the Highway Authority’s position. The claimant alleged immaterial considerations, legal error concerning Grampian conditions, inadequate reasons and irrationality.

Permission refused. The claim disclosed no arguable error of law.

1. Ground 1. The Inspector was assessing the practical likelihood of the Highway Authority exercising discretionary statutory powers, not the planning merits of the landowners’ objections. Evidence of those objections, the need for member approval and the authority’s uncertainty or unwillingness to act was therefore material. British Railways Board v Secretary of State for the Environment and Hounslow LBC [1994] JPL 32 concerned the relevance of unwilling landowners to planning merits and did not address the practical prospects of statutory action.
2. Ground 2. Read as a whole, the decision letter applied the agreed policy test for a Grampian condition: whether there were no prospects at all of the necessary works being completed within the permission’s time limit. The movement from uncertainty in the evidence to a conclusion of no prospect was an evaluative progression, not a contradiction. The reasons were adequate and intelligible.
3. Ground 3. The Inspector understood the scope of the Highways Act 1980 powers. The limited scope of objections under section 208 did not address the threshold question whether the Highway Authority would first resolve to initiate the section 205 process. The unilateral undertaking to pay the improvement costs did not compel the authority to act or remove the identified practical and political uncertainties.
4. Ground 4. The conclusion that the works had no prospect of being completed within three years was open to the Inspector on the evidence. The fact that the Local Planning Authority continued to explore options did not make the conclusion irrational. The challenge was, in substance, an attempt to reargue the planning merits, and the high threshold for irrationality was not approached.

A new argument concerning fettering of the Highway Authority’s discretion was not before the Inspector, was not pleaded and was not determined. The court nevertheless observed that the Local Planning Authority could not require the Highway Authority to exercise its discretionary powers and that the Inspector was not required to investigate the lawfulness of a hypothetical exercise of that discretion. Counsel were asked to agree suitable costs provisions, with submissions if costs were not agreed.

The claimant’s planning appeal against the Council’s refusal was dismissed by the Planning Inspector in a decision dated 23 December 2025. The claimant then sought permission under the Town and Country Planning Act 1990, section 288. The High Court refused permission.