BBARlNG PROCEDURE. SECTION 257 TOWN & COUNTRY PLANNING ACf Stopping-Up of Part of a PubJic Footpath- St lames' PIa e, Brighton FPS/Ql44SISI1

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1 S;:>?OS:I-- 01 BBARlNG PROCEDURE SECTION 257 TOWN & COUNTRY PLANNING ACf 1990 Stopping-Up of Part of a PubJic Footpath- St lames' PIa e, Brighton FPS/Ql44SISI1 RBPRBSBNTATION ON BBBALF OF OBJBCTOR Mr COUN BBNNBTr 1. The Campaign for Planning Sanity have been asked to put forward the following presentation in - support of the objection raised by Mr Colin Bennett. 2. The primary case for objection to the stopping-up of this highway is that such closure is unnecessary in order to allow the proposed development to be undertaken. But it is also our Clients case that the condition that requires the closure of the road is ultra vires. But in any event as the land where the development is to take place is outside of the control of the Applicant there is no real prospect that the development can proceed in the lifetime of the permission, therefore the application for the closure of the highway is premature. 3. The grounds of objection can be put forward into 3 distinct core arguments: a) Was the condition passed on the grant of permission for the development that required the closure of the public right of way, necessary, relevant to planning, relevant to the development to be permitted, enforceable and reasonable in all other respects; b) Is the process being used under Section 257 the appropriate process to determine and application of this nature;

2 s:jpqs' c) Is there a better alternative to the closure of the public right of way. 4. At Common Law the doctrine is that once a highway is established and accepted as a highway by usage then that highway is always a highway. However, statute provides a number of potential routes for the closure of a highway including: a) Under various sections of the Town and Country Planning Act 1990 where there is a need to remove the public right of way to enable development (or mineral workings) to take place; b) Under Section 118 of the Highways Act 1980 where it sets out that a path may be stopped up if the local authority considers it expedient to do so and where it is not needed for public use (along with other sections of the 1980 Act); '- c) Under Section 118B of the Highways Act 1980 where it is in the interests of crime prevention. Albeit that in the context of that section the crime has to be of a significant and persistent nature. It also has to be said here that under Section 147 of the Highways Act 1980 it is an offence to place a gate across a highway other than for agricultural purposes, albeit our Client accepts that if the path is stopped-up the highway will not exist at the time of the placing of the gate For the reasons we set out below this section is still relevant.

3 5. This application is the consequence of an application by a local resident for planning permission to construct a gate across the highway. It is our Client's case that this is no more than a thinly veiled attempt to circumvent the strict criteria for the closure of highways that would be reqtrire to be demonstrated under routes (b) and (c) above. 6. The planning permission was granted subject to the condition that the development should not take place until such time as the closure order was confirmed. This is a clear Grampian condition, the effect of which is that if the order is not confirmed then the planning permission effectively falls. However, our Client accepts that if the condition was removed, that a permission could be granted for a gate to be placed across the highway, providing a suitable replacement condition was imposed that protected the right of the public to use the highway. This could be simply a condition that required that at no time should the gate be locked so as to prevent a member of the public from gaining access. 7. In accordance with the provisions of DoE Circular 11/95 para 14 (which is more fully explored in paragraphs 15 to 42 of that Circular), there are 6 tests that must be passed before a condition - can be attached to a permission:- i.nece8sfit1; ilrekwmt to pltmning; iii.relevant to tm development to be pemaitted; iv.enforcible; 'V.precise; tmd vlreti801iilble ill all other rupeci& 8. Whilst it is accepted that this is not a time to redetermine that permission, it is in our submission, relevant to look behind the lawfulness of the condition, and to determine whether a condition that is clearly ultra vires is incapable of being confirmed. It is our Client's case that the condition in

4 question was unlawfully imposed. 9. The imposing of the condition was clearly unnecessary; the permission was capable of being granted albeit with some restrictions without the closure of the highway. With the imposing of a condition that required that at no time should the gate be locked and barred against entry by the public. Thus a gate could be in place that required a person wishing to use the highway to simply open the gate and close it behind them. It cannot then be said that test (i) is met. We deal with that aspect in more detail below. 10.As we set out below, it is clearly a case that the reasoning behind the application for the planning permission and the stated grounds for the gate's construction relates to the prevention of unlawful acts: that is the defecating in, or on, the highway, which potentially creates a public order offence. It is clear therefore that the primary purpose of the application for planning permission --and-theref-orethe-cenditienunder-oonsideration-relates to a-non--planning-matter:-that-i81he provisions under Section 118B of the Highways Act 1980 for the closure of highways where there is a need on crime related grounds. (This aspect is exploredfurther below). Thus test (ii) is not met I1.To relate test (ill) to the case in hand is a straightforward chicken and egg argument. Is the condition required to implement the permission or vice versa. Whilst the road is capable of being closed with or without the gate being constructed (albeit not by using this process) the construction of the gate could not take place without obstructing the highway if it is to be locked for part of the day. But as we set out below, the need to have a gate that is locked is not relevant to planning but to other legislation. Paragraph 25 of 11/95 sets this out with the words ~~'I'1n18 it

5 ~'JPOS-'-os therefore argues that test (iii) cannot be met in the context that is meant by that test. 12.It is our Client's case that the condition as posed is incapable of being enforced, and therefore runs foul of test (iv). The land where the gate is to be constructed is highway land, that is land that is not in the control of the Applicant. Paragraph 38 of 11/95makes it clear, as does (2) of Appendix B, that it is unreasonable to impose a condition that they could only comply with the consent of a third party (the Highways Authority). Albeit that para 38 relates to a positive condition and this being a Grampian Condition is a negative condition;nevertheless in my submission that same test must be followed when considering the planning application and whether it is appropriate to impose the condition. If the condition was inappropriately attached to the permission, and that condition cannot be complied without the consent of the third party then it should not be applied-any such decision clearly being ultra vires. The final sentence of para 38 making that clear where it states "SimiIariy, corulitio1u whic1ampiinl ",. IlpplictJnt to obitlin till authorilatitm from Q1I()t1Ier body should not be imposed". 13.Can it be said that it is reasonable to deny the public access to a highway only on the grounds that residents want privacy? If that was the case then every street or public place which has residential property abutting onto it could argue that their highway should be stopped up. Therefore our Client strongly argues that it cannot be argued that test (vi) is met. 14.It will therefore be seen that not one of the tests can be met, whereas for a condition to be seen as appropriate all the tests must be met. This case must, in our Client's submission, be approached from the viewpoint that the very basis of the application before the hearing is based upon what is effectively an unlawfully imposed condition. Whilst it is accepted that it is not in the remit of

6 this inquiry to look into the planning merits, the fact is that the condition should never have been attached, and the question in those circumstances of whether the permission should have been granted can and must form part of the considerations that are taken into account in the context of whether the Process should further assist an unlawful decision simply because it has not hitherto been challenged. I5.Stopping up of a highway under Section 257 of the T&CPA 1990 which provides as follows: (1) Subjectto section259. a ~ authoritymay by onlr authorise tm stopping up or divd8itm of any footpotia or 1nitlkway "they are satisfied that it is necessary to do so in o'*r to enable development to be carried DIll- As a consequence of S259(2) the Secretary of State shall not confirm an order under S257 unless and until he is satisfied as to every matter that the authority making the order has been met. From this it is clear that the Secretary of State must be satisfied that it is necessary (in planning terms) to stop up the footpath in order for the development to be carned out. As already set out above the mere construction of the gate would not of itself require the stopping up of the highway; that only comes about by the indication of a desire to 'lock' the gate against all bar those persons permitted by existing residents and other persons of an official nature. The implementation of the locked aspect of the gate is a consequence of the end result of the development as stated in the application, but not of the actual development itself. Whilst our Client does not want to see any obstruction placed across this highway, and indeed may very well choose to make objections to any other proposal to do so, those considerations are not a matter for this inquiry The only aspect for consideration in relation to this point is the closure necessary for the development to take place, and as we shall demonstrate it clearly is not.

7 16.Our Client's primary case is that the use of Section 257 is an abuse of process in that it was clearly not the intention of Parliament to take lightly the closure of any highway. Parliament accepted that from time to time it would be necessary to close, or divert a footpath that crosses a development site in order for the development to take place. Parliament also accepted that in rare cases it would be necessary to close highways and therefore placed a statutory power to do so under Section 118 of the Highways Act More recently they determined that to help deter or prevent crime that certain footpaths may be closed under provisions contained in the Countryside and Rights of Way Act 2000 that amends the 1980Act. That later Act was an opportunity for -- Parliament to look again at the closure of footpaths, yet they specifically restricted closures to the limited grounds contained within the amended 1980 Act. Therefore, this closure can and must only be determined on the sole question of whether it is 'necessary in order to allow the development to be undertaken' No other ground can be used. or taken into account, but nevertheless it is relevant as to whether the course being pursued is the appropriate course for a closure order of this nature. 17.Parliament was clearly not intending that a development that was only required in order to restrict use of a highway should of itself be used as an instrument for the closure of the highway. The use of this provision in that way can only discredit the entire planning process. and can only be viewed as an inappropriate device to circumvent more stringent processes for the closure of such paths. 18.When we look at the prospect of the gate being an obstruction of the highway then it must be viewed as at best a temporary obstruction. albeit that the structure is permanent The fact that the gate can be opened allowing users of the highway to pass and repass is such that whilst being prima facie an obstruction is such that the courts would be slow to act against the perpetrator of

8 S'::)F\:)SI...o~ the obstruction. This is set out in Attomey General v Wilcox [1938J Ch 934, at pages by Mr Justice Farwell: "Where there i8 ti public right ofway, whetmr tipublic /tjoqitiiii or ti public right ofway of ti widb IItJtIITeover ti defined tjtetiof land. the public Iuwe ti right 10Jl8et1uJItIejiruglfllWlfor the J1IITIIO"ofptl88ing. J~g,. they an entitled. prima facie, 10 use fl1iypti1t of it between the hedge or fence or other bou1ultiria of the land. whetmr it be "- grtili8wip or ti portioll of the way which i81mtt1lkd or IIIIIM up. Their right, prima facie, i fl1iypti1tof thewayfor "- J1IITIIO" ofptl88ing.,,. Therefore, anything which is plat:ed Oil the tiejirugl tjtetiin question w'*" prevenl810"-11iuillut.gru,." 1M1IIberof"- public ubi, ". w1aoleof "- way is an obstnu:tlo1l, brit it does not follow t1ujinctili8e St1IMpenOll ho8p1acedill "- waysomet1iingwhich i8an ob8tnu:tidit ill "..". """ tmreby ti member of the public CtIIIIIOtput 1aisfoot 011some ptitiicri1ar ponionof"-1iig1awtjy """ """ pemmho8tmreby~tlciitmable liliisance. As lluwe 8tIid, ptinul facie, it is an rmlawful od 10put anything 011tIpublic way w'*" obstnu:t8 ill tm 11IUIllut"" ". UDCiB by the public oft1aeir rights; but the Court will not interjm where wlult ho8 been tlon.e i8 somet1iing which is of 80 triviiil tllfiiiiire 8 not 10 C01I8titutetI substtmtial interjmnce, fi8,for i1i8ttmce, in ti co.re where the alkged ob8tnu:dtm is only of temportzry 1IIItIIre." 19.From this it will be seen that the condition is obsolete and of no avail as its purpose cannot be justified in that the mere provision of the gate does not require the closure of the highway. The locking of the gate to keep out undesirables and others intent on causing a nuisance is not a material consideration but instead is more suited to the special provisions on closures contained in Section 118B of the 1980 Act to prevent criminal activity (i.e. public order offences). Whilst our Client would in any event oppose the grant of permission for the gate and does not by the presentation of this argument concede that planning permission should have been granted, if for no other reason than the Applicant does not have sufficient control over the land to ensure that the development is capable of being undertaken within the life of the permission. Nevertheless it is a material consideration to the question under consideration before this inquiry whether the condition is needed, and more importantly that it is necessary to stop-up the path. As already set

9 out, clearly it is not necessary to close the path, as the construction of the gate does not of itself prevent it being opened to allow free passage of users of the highway. 20.On the question of Section 118B of the Highways Act 1980 then of course this provision only applies to allocated areas where there is a high risk of crime and disorder. But that is important because Parliament in its wisdom concluded that only in such exceptional circumstances should highways be stopped-up on grounds of criminal activity, and not for isolated incidents. In the present case residents complain that members of the public have defecated in the highway, that is inappropriate behaviour and is clearly a public order offence over which the Police have powers to take action. We accept that it may be appropriate in certain circumstances to impose conditions on planning applications in order to prevent potential criminal activities from occuring. Indeed if a local business was to apply to have installed security devices after a spate of burglaries the planning authority might look on that application favourably, whereas if it had not been for those burglaries the permission might be denied. But can the same test be applied where the general rights of the public are affected, Parliament has decreed that only where there is significant criminal activity should those rights be interfered with. It is therefore in our submission no ground to stop-up this path on the grounds put forward for applying for the planning permission. 21.Parliament attaches great weight to the protection of the public's continuing right to use highways Paths can be extinguished only in rare circumstances. They have empowered local authorities with a general right to stop-up paths under the provisions contained in Section 118 of the Highways Act But within their deliberations under those powers they must determine that the path is unnecessary or not needed for public use. As already stated it was never the intention for this power to be usurped by provisions set out in planning legislation. Had the

10 ~-:)POS-' - (0 Council resolved under their powers contained within S118 that the path was no longer needed for public use then representations on that aspect could have been raised. The minds of the public could have been focussed on the issue in question and appropriate representations put forward. Can it therefore be said with certainty that the Council (as opposed to the local planning authority) would have concluded under those provisions that this path should be stopped up. To anive at that decision they would have needed to have investigated the needs of members of the public; they would have needed to have seen what if any alternatives were available. More importantly whether the historic path was a through route, and the consequences of closing part of that through route. 22.Rarely can gates or stiles be erected except in the narrow set of circumstances permitted by section 147 of the 1980 Act. Parliament would not have troubled thus to protect the public's right to use highways if by enacting section 257 of the Town and Country Planning Act 1990 it had intended the extinguishment of a right of way by the simple expedient of putting a gate across it and calling the gate 'development'. For the same reasons given above. if the Council was of the view that a gate should be placed across the highway then they must and should first and foremost use the provisions set out in S147 of the 1980 Act. But of course. that would not suit the Applicant's needs as he does not want to erect the gate for agricultural purposes, but instead to merely exclude members of the public other than those he deems fit to invite onto what would as a consequence of the development approval and this closure order if confirmed become a very valuable personal asset of the Applicant. 23.The Local Government Ombudsman found that maladministration had occurred when Burnley Borough Council had closed footpaths on grounds that were not acceptable highways considerations. A path ran at the back of some gardens it was well-used, but as sometimes

11 S-:)PO~ J - " happens a minority element behaved in an anti-social way on the path, so the residents wanted it closed. That council contrived 'clum" 0/118" as the basis of planning permission, the path would be incorporated into the gardens, and extinguished on the footing that it was necessary to extinguish it in order to enable development in accordance with a grant of planning permission to be carried out, namely 'change of use from highway to private gardens'. Soon a wall had gone up to obstruct the path. The complainant made it clear that it was not so much the construction of the wall to which he objected, but rather the principle of using planning permission to circumvent the safeguards of the public's rights contained in the proper procedures set out in the Highways Act The Ombudsman took the view that this was not a bona fide grant of planning permission at all. It wasjust a request to have the path shut, not a true request for planning permission in the sense contemplated by Parliament The Ombudsman found that the 'development' was merely a convenient fiction to seek the closure of a footpath without the wider public interests of footpath users being adequately considered in the way that they should have been. (Complaint reference 97/C/3401, report issued 17 March 1999.) 24.For an order under section 257 to succeed it must be shown that it is necessary to divert or extinguish the path in order for the development to be carried out. Necessary is the word used by Parliament It is not enough to show that closure is expedient, or desirable for people who live near the path, but that it is necessary to stop-up the highway. As we have already stated even if it was necessary to erect the gate, that does not of itself make it necessary to stop-up the highway, or in anyway restrict the public use of that path. 25.For all the reasons given above on behalf of our Client we urge that the Secretary of State does not confirm the proposed order. Chris Maile (Director Planning Sanity) - January 2005