The Planning Inspectorate- Wales

Notes for the Guidance of Inspectors Holding Inquiries into orders and Special Road Schemes.

6. The Scope of the Inquiry (continued)

Alternative Route

6.29 If an objector to a CPO wishes to propose an alternative route to the one which is the subject of the CPO, and the route in question has not already been settled by the making (or confirming) of a previous order or a grant of planning permission following the inclusion of the precise route in an adopted Local Plan or Unitary Development Plan (sub-paragraph 6.25 above), the provisions of Section 258(2) of the Highways Act 1980 apply (see paragraphs 6.17- 6.21 above).

Restriction as to Modification

6.30 Finally, it should be noted that whilst a CPO can be modified by the deletion of part of the land it covers, it cannot be modified to authorise the purchase of further land unless all persons interested consent (see Schedule 1, Paragraph 5 of the Acquisition of Land Act 1981 as to Secretary of State / NAW orders and Section 14 as to local authority orders). If it is agreed at the inquiry that land should be added to the CPO, the written agreement of all interested persons is received by the Inspector and should be enclosed with the Inspector's report.

Stopping Up Orders under the Town and Country Planning Act 1990, Section 247

6.31 Section 247 of the Town and Country Planning Act (s247) provides the power for the Secretary of State / NAW / relevant London Borough to stop up or divert a highway where they are satisfied that this is necessary to provide for development. The power is exercised on a discretionary basis. Stopping up or diversion does not follow automatically as a result of an approved development proposal.

6.32 In reaching a view about whether or not to recommend confirmation of a s247 order, the development proposal must first have been granted planning permission under Part III of the 1990 Planning Act. In addition, the proposed development must cause obstruction in the highway. These are straightforward, factual considerations.

6.33 Less straightforward is the need to weigh the disadvantages, or loss likely to arise, as a result of the stopping up or diversion, either to members of the public generally, or to persons whose properties adjoin, or are near, the existing highway, against the advantages to be conferred by the proposed order. This assessment may require that the highway and/or traffic matters considered at the planning permission stage by the authority are subject to further examination as part of the consideration of the order, along with the relevant matters raised in the objection to the order under the provisions of s252 but not raised at the planning permission stage.

6.34 There may be some overlap between the considerations taken into account at the planning permission stage and in deciding whether or not to confirm a s247 order. Though the planning merits of an approved scheme cannot be reconsidered, an Inspector cannot automatically pre-empt an opportunity for other objectors to raise points about the highway, traffic or economic implications, even though these may have been considered in general terms at the planning permission stage. This approach arises as a consequence of the Vasiliou judgement 5 .

6.35 Just as the Secretary of State's/NAW's power to confirm a s247 order is exercised on a discretionary basis having regard to the particular circumstances, the Inspector also has the discretion to allow the presentation of evidence directed to the particular circumstances, even though this may have been considered by the authority at the planning permission stage. Thorough preparation by the Inspector, based on the papers available prior to the inquiry, might not reveal the full extent of the particular concerns of those affected directly or indirectly by the proposed closure. The full extent of these concerns may become clear only at the inquiry.

6.36 Thus it is best in appropriate circumstances to hear again some evidence previously considered by the authority. At the inquiry the Inspector should explain that the evidence may already have been taken into account when the authority decided to grant planning permission. Limited weight might be attached to this evidence when reaching a balanced view about the disadvantages of the s247 order as against the probable benefits to the community of enabling the approved development to be provided.

6.37 There are no procedure rules for inquiries under s247, but an Inspector should use the powers vested in the role and be mindful for this type of case that it is eventually for the Secretary of State / NAW / relevant London Borough to determine what might or might not be relevant in considering a s247 order. If the planning authority object to the acceptance of specific evidence already considered at the planning application stage, a valid response would be that it is for the Secretary of State / NAW to decide what evidence is material and what weight should be given to it.

6.38 In a s247 case the Inspector should include in his or her opening statement the criteria for an order. The criteria should also be included in the conclusions to the report. Therefore the opening statement should include remarks to the effect that the Inspector will need to be satisfied as to:

Whether it is necessary to stop up or divert the highway in question to allow development to be carried out in accordance with the planningpermission already granted but not implemented; and whether the disadvantages or loss likely to arise as a result of the stopping up or diversion, either to members of the public generally, or to persons whose properties adjoin, or are near the existing highway, outweigh the advantages to be conferred by the proposed order.

Local Authority Orders

6.39 Considerations similar to those which apply to orders proposed by the Secretary of State / NAW also apply to local authority orders. In the latter case however, the emphasis is likely to be on local factors rather than on the implementation of national policies. In practice, local highway authorities tend to follow central government advice and standards although they are under no obligation to do so. Occasionally, Inspectors may find that a local highway authority has departed from the national standards or has not adopted the latest of these. In such cases it will be for the local highway authority to justify its standards and the consequences for land acquisition taking account of the criteria of paragraph 2.3 above.

5, Vasiliou v Secretary of State for Transport and another, [1991] 2 All ER 77, 61 P&CR 507, [1991] 1 PLR 39, [1991] JPL 858.

Revised November 2004