The Lord giveth, and the Lord taketh away.

Even in these troubled times, it may be harsh to equate the government with divine retribution. But as funding cuts delay the planning process still further, the Department of Transport offers some relief with its consultation paper on reform of the process for stopping up and diverting highways under sections 247 and 248 of the Town & Country Planning Act 1990. These proposals arise out of the Penfold Review of non-planning consents published in 2010.

As the law in England stands at present, developers can apply to the Secretary of State (or in London, to the Borough) for the stopping up or diversion of any public highway, where it is necessary to do so to enable the carrying out of a development for which planning permission has been granted. Often this isn’t anything spectacular, just a realignment, barely noticeable once the hoardings come down.

The problem is that planning permission has to be granted before this process can be begun. So even if the planning authority has resolved to grant permission months before, until the often lengthy negotiations for the section 106 planning agreement are concluded, and the decision notice issued, the developer can do no more than fume helplessly in the knowledge that it will still be some time before he can start on site.

The proposals in the Consultation Paper offer a number of solutions: that the application be made in parallel with the planning application; and that (outside London) the decision be devolved to the highway or planning authority (in the latter case, after consultation with the highway authority). A statutory time limit is proposed for the resolution of objections (which must already be made within 28 days). Much time, it is said, might be saved and bureaucracy avoided.

So far, two hearty cheers. However, the DoT has resisted Penfold’s call to merge both applications into a single regime (too complex and confusing, apparently). Naturally there will be a fee to pay. If objections can’t be resolved we will, as before, be off to a public enquiry. And there will still be a slight timelag post-planning before the stopping up order is made (though that may not be an issue as we may have to defer starting, in case anyone applies for judicial review).

But on the whole, a crumb of comfort for hard pressed developers. Do all please read the Consultation Paper and have your say.

Of course, once the road is closed, the ex-highway land may still not be in your title. But that’s another problem altogether……

Visit the Department of Transport’s website for more information.

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