Regina v Warwickshire County Council Ex Parte Powergen Plc: QBD 9 Jan 1997

The power to incorporate highway works in planning agreements is limited to subject land. Forbes J said: ‘It is common ground that the new Section 278 was intended to fit into and play its part in the overall legislative system for the controlled development of land through the planning process and I accept that Section 278 must be interpreted accordingly. In my opinion, where the benefit to the public of the proposed highway works, in respect of which an agreement with the Highway Authority is sought under Section 278 of the 1980 Act, has been fully considered and determined in the planning process, because the highway works in question form a detailed and related aspect of the application for development of land in respect of which planning consent has been properly obtained through that planning process, then the Highway Authority’s discretion whether to enter into the Section 278 agreement will necessarily be somewhat limited. In such a case, the matters remaining to be considered by the Highway Authority in the proper exercise of its discretion under Section 278, are likely to be relatively minor in nature. I agree with Mr Hicks that the proper exercise of that discretion by the Highway Authority will not embrace a further and separate reconsideration of the benefit to the public of the highway works in question by reference to the same reasons as those which had already been considered and determined in the planning process. If such a reconsideration by the Highway Authority were to be a proper exercise of its discretion under Section 278, then that would largely frustrate the scheme of the legislation of which Section 278 is conceded to be part. This would be particularly so where, as in the present case, there has been no challenge to the validity of the relevant planning decision pursuant to Section 288 of the Town and Country Planning Act 1990, notwithstanding the Highway Authority’s right to bring such a challenge under that Section.’
As to the challenge by Powergen on Wednesbury grounds: ‘In this case there had been a dispute as to the balance of the public interest with regard to the proposed development. The adequacy of the access arrangements and the related highway works was one factor in that balance. In the course of the planning process, the County Council as Highway Authority argued that, because of the lack of forward visibility, the balance of public interest was against the proposed development for road safety reasons. The dispute was fully argued at the planning appeal and determined by the Secretary of State by his duly appointed Inspector. The Inspector’s conclusions were clear and were not challenged pursuant to Section 288 of the 1990 Act, within the prescribed time limits or at all. Having regard to the terms of Section 284 of the 1990 Act, I accept Mr Hicks’ submission that the Inspector’s conclusions should be treated as both reasonable and final. The present proceedings are not the place to reconsider the merits of the foregoing dispute. Since the development proposals as a whole were found to be in the public interest, so too were the detailed highway works which formed a necessary and related part of those proposals. In those circumstances, I accept Mr Hicks’ submission that no reasonable Highway Authority would, on the sole basis of the arguments as to road safety which had been fully considered and determined in the planning process, refuse to enter into any necessary Section 278 Agreement on the grounds that to do so was not a benefit to the public, thereby preventing the development from proceeding. I have therefore come to the conclusion that the decision of the County Council in this case to refuse to enter into the Section 278 agreement in question is both perverse and unreasonable in the Wednesbury sense. As Mr Hicks succinctly put it, it cannot be reasonable for the Highway Authority to allow a decision of the Secretary of State to be implemented only if it agrees with that decision.’
References: Times 09-Jan-1997, (1998) 96 LGR 17
Judges: Forbes J
Statutes: Highways Act 1980 278
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Last Update: 21 November 2020; Ref: scu.88272