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Stopping the Stopping Up Hold Ups

Anthony Greally 21 Aug 2013
For many developers who have experienced the complex procedure of a highways stopping up application, the legislation[1] brought in this summer will be welcome news. It remains to be seen, however, as to how successful this legislation is in giving greater certainty when making applications for the stopping up of highway land that is required to implement a planning permission.Up until this summer, stopping up highway land (via the Planning Act route) was typically a five month process if no objections were received to the application.
It was also a process that could not commence until the grant of planning permission. Programming five months into a major development project has,in the past, not been a real issue for developers who use that time after the grant of planning permission to pass through the Judicial Review period and discharge the pre-start planning conditions. Shortening the five month process, by being able to run a stopping up application concurrently with the planning application, is, nevertheless, a helpful step in speeding up the delivery of development (particularly when coupled with the recent changes to shorten the Judicial Review period for planning permissions and the government’s wider efforts to streamline the planning process).
This is all good news when a stopping up application is uncontested by third parties. Where a draft order is objected to, however, timescales can extend beyond the five months, be compared to pieces of string and cause uncertainty and delay to developments getting out of the ground. The Department for Transport considered introducing a statutory time limit for negotiating objections to stopping up orders though decided against it (perhaps understandably) as too short a period would probably increase the instances of public inquiries whilst a longer period, say three months, would have no real impact.
Since Mr Vasiliou’s [2] successful challenge to the Secretary of State’s decision to grant a stopping up order for highway near his restaurant, on grounds relating to the adverse impact that the stopping up would have on his business, the decision of the Courts has left the Secretary of State in the position of having to give due consideration to objections from third parties who have no direct interest in the highway land. This can bring uncertainties as to where objections may come from, what those objections may relate to, and (perhaps most importantly) how long it will take to overcome those objections.
Our experience of negotiating away objections has proved valuable to the delivery of projects but without fixed timescales it remains an uncertain process.
We commend Government for taking the steps to enable stopping up and planning applications to run concurrently, though a stopping up application does still feel a bit like a journey into the unknown.

[1] Growth and Infrastructure Act 2013, Chapter 27, Part 11 amending Section 253 of the Town and Country Planning Act: ‘Procedure in anticipation of planning permission’.

[2] Vasiliou vs Secretary of State for Transport (1991)