Public footpath: diversion/extinguishment: TCPA S257: necessity and merits test

In R (on the application of Network Rail Infrastructure Ltd) (Claimant) v Secretary of State for the Environment, Food & Rural Affairs (Defendant) & (1) Eden District Council (2) Story Homes Ltd (Interested Parties) [2017] EWHC 2259

This case is a useful reminder for practitioners and developers when dealing with applications under section 257. It emphasises:

  1. the correct procedure for the determination of preliminary issues. The Court noted that it was unusual for an inspector or the Secretary of State to dispose of an entire process by reference to a preliminary issue unless there were “proper”arguments relating to a lack of jurisdiction to determine the issue at hand. Instead, the Court emphasised that preliminary issues must be identified precisely in advance and the parties must be notified and invited to prepare and exchange written arguments to address any preliminary issues ahead of a scheduled hearing (which is considered the normal practice);
  2. the requirements for confirming an order made under section 257 of the Act. The necessity test is a pre-requisite for confirming an order under section 257, but it is not an initial hurdle that must be cleared before the merits of the order may be considered. The Court suggested that the issue of whether or not to make or confirm an order is often inseparable from the merits of the order and, as such, a decision cannot be made until all of the merits have been considered by the decision-maker; and
  3. the necessity test does not require an order under section 257 to be indispensable in order for the development to proceed, but rather “required in the circumstances of the case”. Where a stopping up order is necessary to enable development to be carried out in accordance with a planning permission, the terms of the planning permission are relevant to the consideration of the necessity test.

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