PP 2013/1 Visibility splays need to be governed by planning condition unless over highway land
Section 79 of the Highways Act 1980, which is concerned with preventing obstructions to visibility, empowers the highway authority to serve notice on an owner or occupier of land requiring him to alter any wall, fence, hoarding, tree, shrub or other vegetation on the land so as to cause it to conform with any requirement specified in the notice. Separately, section 154 grants the highway authority power to serve notice on an owner or occupier of land requiring him to lop or cut any hedge tree or shrub overhanging the highway.
In Hughes v Secretary of State for Communities and Local Government [2012] EWHC 3743 (Admin) the question arose whether an inspector, on appeal, was correct in taking the view that visibility splays generally need to be over highway land, or in some way governed by planning conditions, to be regarded as effective and so declining to rely upon those specific statutory powers in deciding whether or not to grant planning permission.
Section 79 of the Highways Act 1980, which is concerned with preventing obstructions to visibility, empowers the highway authority to serve notice on an owner or occupier of land requiring him to alter any wall, fence, hoarding, tree, shrub or other vegetation on the land so as to cause it to conform with any requirement specified in the notice. Separately, section 154 grants the highway authority power to serve notice on an owner or occupier of land requiring him to lop or cut any hedge tree or shrub overhanging the highway. In Hughes v Secretary of State for Communities and Local Government [2012] EWHC 3743 (Admin) the question arose whether an inspector, on appeal, was correct in taking the view that visibility splays generally need to be over highway land, or in some way governed by planning conditions, to be regarded as effective and so declining to rely upon those specific statutory powers in deciding whether or not to grant planning permission. In that case, the inspector had refused to grant planning permission for the use of land as a traveller site by the claimant. There was a serious deficiency in the access from the site onto the public highway, given the lack of control over the sightline to the east. The claimant challenged that decision under section 278 of the Town and Planning Act 1990, contending principally that the inspector’s finding on the visibility issue was at its best a very weak finding (and possibly wrong) such that it should have been disregarded, or at the very least regarded as comprehensively outweighed by the recognised obligation take into account the best interests of the claimant’s children. The court rejected that argument and held that the inspector was entitled in the circumstances to reach the conclusion that the objections in relation to visibility were of sufficient importance to outweigh the best interests of the children and to justify the refusal of planning permission. Section 79 allowed the person affected to object to the notice, with provision for the matter to go by agreement to arbitration, and in default of agreement to be dealt with by the County Court. Clearly, the outcome could not be guaranteed, and the relevant authority would have no control over it. In the case of section 154, there was a right of appeal to the magistrates’ court, and by inference from there to the Crown Court. Reliance on section 154, therefore, was open to precisely the same concerns as reliance upon section 79. John Martin
