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Court of Appeal Interprets Planning Condition on Stopping-up Order

Juan Lopez

R. (oao Network Rail Infrastructure Ltd.) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069

In a judgment given by Lord Justice Lindblom (Lewison LJ dissenting) the Court of Appeal has dismissed the appeal of the Secretary of State for the Environment, Food and Rural Affairs made against the decision of Holgate J to quash the decision of an Inspector not to confirm a stopping up order made under s.257 of the Town and Country Planning Act 1990. The appeal considers whether a planning condition, properly construed, prevented confirmation of the stopping-up order on the basis that it contemplates development proceeding even in the event of non-confirmation.

An order-making authority had considered it necessary to impose the condition to enable development for the construction of 142 dwellings to be carried out. The condition restricted development to no more than 64 dwellings unless either of two prescribed “exceptions” occurred: (i) that a stopping-up order to divert, stop up (to prevent access across a railway crossing) and re-route had been made and confirmed; and (ii) that the Secretary of State did not confirm the order. The two “exceptions” reflected two alternative outcomes to the statutory process for making and confirming stopping-up orders, the content of which was defined in “exception” i).

Network Rail, supporting confirmation, had voiced concerns over the possibility of an increased risk of accident from the greater use of a nearby railway crossing by virtue of the development.

At the confirmation inquiry, without hearing evidence, the inspector wrongly concluded that the planning condition permitted the whole development to be carried out regardless of confirmation, and therefore that diversion could not be necessary to enable the development in the terms of s.259. The Inspector unlawfully found that the order was legally incapable of being confirmed.

A copy of the Court of Appeal judgment can be accessed here.

Juan Lopez acted for the successful respondent, Network Rail Infrastructure Limited.