Solicitor in the Planning and Development Team, Sarah Hare discusses how to determine what is a classified road and the learnings from the statutory challenge of a recent case involving classified roads.
The meaning of a 'Classified Road' for the purposes of Permitted Development under Class B, Part 2, Schedule 2 of the General Permitted Development Order 2015 GPDO 2015.
The High Court recently heard the case of Jones & Anor v Secretary of State for Housing Communities and Local Government & Anor  EWHC 520 (Admin). The case was a statutory challenge pursuant to Section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) against the decision of a Planning Inspector who dismissed appeals made by two appellants (“the Appellants”) against an enforcement notice.
Horsham District Council (“the Council”) issued both Appellants with an enforcement notice against the construction of a vehicular access which did not benefit from planning permission.
Both Appellants subsequently appealed the Council’s enforcement notice on identical grounds. Resulting in the Planning Inspector having two appeals, identical in nature, to consider concurrently.
The appeals were pursued on ground (c) of Section 174(2) of the TCPA 1990 - on the basis that the works did not constitute a breach of planning control - and ground (d) of Section 174(2) TCPA 1990) - that such works were immune from enforcement action due to the length of time that had lapsed. The Inspector dismissed both appeals and held that the enforcement notice should stand.
Following the Inspector’s dismissal, the Appellants lodged a statutory challenge with the High Court based on the Inspector’s decision relating to ground c) of their claim only on the following grounds:
1) that the Inspector had erred in law in failing to deal with a particular issue raised in the appeals, specifically whether the development was permitted by the General Permitted Development Order 2015 (the “GPDO”);
(2) that the Inspector failed to deal with a material consideration, namely a previous decision letter with the same legal point and facts;
(3) that the Inspector was incorrect in finding that the road from which the site was accessed was ‘classified’;
(4) having acknowledged that there was a pre-existing gate on the site’s boundary, the Inspector failed to take into account this fact, or failed to explain why he could ignore it, when upholding the enforcement notice to the extent that it would require the filling-in of that lawful opening; and
(5) that the Inspector failed to vary the enforcement notice so that the steps for compliance left the pre-existing and lawful opening capable of being used. This would have reduced the impact of the enforcement notice.
Mr C M G Ockelton, Vice-President for the Upper Tribunal, dismissed the statutory challenge on all grounds.
When considering the challenge, Mr C M G Ockelton looked at the GPDO, the road, and the gate in turn. For the purpose of this article, I am going to concentrate on the issue of the road.
Class B, Part 2, Schedule 2 of the GPDO permits:
‘The formation, laying out, and construction of a means of access to a highway which is not a trunk road or a classified road*, where that access is required in connection with development permitted by any Class in this Schedule (other than by Class A of this Part).’
Therefore, the main crux of the Appellant’s case concerned the status of the road to which the vehicular access to the site was constructed. So far that if the road was unclassified, on the face of it, the laying out of the access road would be permitted pursuant to Class B of the GPDO.
Section 12 of the Highways Act essentially states that:
Therefore, you cannot just rely on roads being ‘A’ or ‘B’ roads to be classified. Some unnumbered roads can still be classified.
Mr Ockelton went on to set out that the provisions of the Highways Act and the GPDO are:
‘…matters of law. That very proposition of itself is sufficient to dispose of [the Appellants’]… second ground. An Inspector's decision in another appeal, about another road, is not a source of law; and the Inspector in the present case had no need to take it into account for that purpose. Indeed, he would have erred in law if he had taken it into account. [The Appellants have]… made a number of assertions about classified and unclassified roads in general: they are unsupported, and do not take into account the statutory definition, which is sufficiently clear, and which has in any event been the subject of exhaustive inquiry by Buxton LJ (with whom the other members of the Court agreed) in Hill v Secretary of State for Transport Local Government and the Regions  EWCA Civ 1904. A road is a classified road for the purposes of Section 12 of the Highways Act in the circumstances there set out. There is not a separate and overriding principle that only A and B roads are classified roads, or that any reclassification process is necessary in order for a classified road to remain a classified road. On the contrary, it is not… easy to see a way in which a classified road can cease to be classified.’
Mr Ockelton went on to rule that:
‘There appear to be no general characteristics shared by all classified roads, save for the single necessary and sufficient condition that they fall within the definition in Section 12 of the Highways Act.’
This element of Mr Ockelton’s Judgment clarifies that to be a “classified road” a road must satisfy Section 12 of the Highways Act – it does not need to be a numbered road as the Appellants argued.
Therefore, when considering whether it is possible to construct a means of access to a highway under permitted development rights (where that access is required in connection with development permitted by any Class in Schedule 2 of the GPDO) it is important to first look at Section 12 of the Highways Act to see if Class B, Part 2, Schedule 2 of the GPDO applies.
The Holmes & Hills Planning Team regularly advise on permitted development rights and highways law. Please do get in contact with the Holmes & Hills Planning Team, if there is a permitted development or highway matter that we can help with.