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High Court Secures Future of Historic Steam Crane

Charles Streeten

Mrs Justice Steyn has today handed down judgment in Malvern Hills DC v Secretary of State for Housing Communities and Local Government [2021] EWHC 129 (Admin).
The case concerned the grant of planning permission for the storage of ex-British Railways steam operated crane ADRS 9500 for demonstrations at the Welland Steam and Country Rally, in a shed erected across a public foot-path without consent. Malvern District Council had originally refused planning permission for the development, but planning permission was subsequently granted by an inspector on appeal.
The Council appealed the Inspector’s decision to the High Court under section 289 of the Town and Country Planning Act 1990 and HHJ Worster (sitting as a judge of the High Court) granted permission to appeal on 13 August 2020 on three grounds.
The Council’s first ground was that the Inspector had failed to have regard to para. 98 of the NPPF which requires planning decisions to protect and enhance public rights of way and access. It relied on the fact that the Inspector had said that the fact that the shed was erected across a public footpath “is not a material factor in considering the planning merits of the building”. The Court accepted, however, that this was a reference to the merits of the building. Earlier in his decision letter, the Inspector had recognised that the shed was located across a footpath, and there was no reason why he should have referred expressly to NPPF para. 98 in circumstances where that policy had not been relied upon by the Council.
Secondly, the Court dismissed an allegation by the Council that the Secretary of State had misconstrued policy SWDP 34 of the development plan, and/or had failed to have regard to the need to consider alternative non-greenfield sites. The Steam Crane had been in the open for 60 years and had been saved form decomposition by the enthusiasm of volunteers. It had remained on the same section of track it had originally been placed on because of the difficulty of moving it and there was nothing to suggest the Inspector’s conclusion on alternatives was irrational.
Finally, Steyn J rejected the Council’s argument that the Inspector’s decision on the movability of the crane was procedurally unfair. The High Court found that the question of the need to store the crane on the site was before the Inspector. It would have been open to the Council to put in more evidence to support its fall back position that the crane could be stored elsewhere and it chose not to. It was ultimately open to the Inspector to reach the judgment he did on the basis of the evidence before him.
Charles Streeten appeared for the successful Respondent, the Secretary of State, instructed by Shahnaz Zaidi of the Government Legal Department
A copy of the judgment is available here.