New housing developments will occasionally swallow up existing roads or paths. A Stopping Up Order or Diversion Order should be sought where there is a need to close, divert or '"stop up" a road, footway, footpath, core path or bridleway permanently, to enable a development to be carried out.
Background
Under the Town and Country Planning (Scotland) Act 1997, sections 207 and 208, the planning authority (or Scottish Ministers) will promote the Order but only if they are satisfied that it is necessary in order to enable the development to be carried out in accordance with a valid planning permission.
Necessity
Although developers are reliant on the relevant planning authority to promote the Order, the planning authority might request further information from the developer to show that it is necessary, especially since the test of necessity cannot be met simply because planning permission has been granted.
The terms of the planning permission are therefore key, and it has been accepted that 'necessity' test may be met if the development, or part of the development, is prohibited until the Order is made. The relevant issue is whether the diversion is necessary to enable the authorised development to be carried out, not whether the diversion is necessary in general terms.
The word "necessary" does not mean "essential" or "indispensable" but instead means "required in the circumstances of the case". In other words, it does not mean that there must be absolutely no alternative before the order can be confirmed. It must be reasonably necessary and so far as required in the circumstances of the case.
Other Considerations
The planning permission is not the only relevant issue. The planning authority must take into account any significant disadvantages flowing from the Order for the general public or for individuals with rights of access. They must then decide whether those disadvantages are sufficiently important to justify the refusal of the Order.
Procedure
If the planning authority is satisfied that the Order is necessary, it must then be advertised in the local press and the Edinburgh Gazette. A notice will also be displayed on-site at the affected location. There is a minimum period of 28 days for submission of any objections to the proposed Order. If no objections are received, the Order will be confirmed by the planning authority. Any objection made and not withdrawn will be submitted to the Scottish Ministers for decision through a hearing or public inquiry.
The inquiry is likely to involve the objector(s), the planning authority and landowner/developer. Other interested members of the public may also attend. As the promoter of the Order, the planning authority will set out the basis and justification for the Order.
After the inquiry, a report will be prepared by the Reporter and the Scottish Ministers will consider whether to grant the Order. They may do so with or without modification.
A case study: Newton Shore, Lochranza
A recent decision by the Scottish Ministers explores the scope of matters that can be taken into account when considering whether an Order should be granted.
On 25 January 2023, North Ayrshire Council granted planning permission in principle for four residential plots and a realigned access path at a site to the north of Kirn Point, Lochranza. At the time the permission was granted, a public path passed through Plot 2 of the site. To allow the approved development to be carried out, a section of the path needed to be diverted so that it would pass between Plots 1 and 2. The permission therefore included a condition that the path should not be stopped up or diverted until a Path Diversion Order had been confirmed.
The Council proceeded to promote the Order, and a notice was placed in the Arran Banner and the Edinburgh Gazette, as well as being placed on site. A total of 21 objections were received. The matter was therefore referred to the Scottish Ministers to consider, and a Hearing was held in September 2024.
In his report to the Scottish Ministers, the Reporter makes the following key points:
- The process of examination of an Order is separate from consideration of a planning application and involves a different test.
- Planning matters raised in objections do not fall within the scope of the Stopping Up Order process and an inquiry should not involve re-hearing matters already taken into account when deciding the planning application.
- The Reporter cannot re-litigate the planning permission.
- Although the Reporter can consider matters that are relevant to both issues, the primary determining question remains whether the Order is necessary in consequence of the permission granted.
The Reporter also considered the objectors proposals of potential alternative routes which would prevent the need to divert the path. However, he concluded that such a change would be a material one and would involve a need to make an application to vary the existing permission in principle. The key takeaway here is that while there may be potential alternatives which would prevent the need for an Order, it may still be necessary unless the alternatives fall within the valid planning permission.
Conclusion
Ultimately, the necessity of a stopping up or diversion order is dependent on the circumstances of the case. That is much easier to assess where the planning permission is subject to a condition that work should not commence until the necessary stopping order has been obtained, or if it is proposed to erect a building over the centre of a road, for example. It is more difficult where it is not clear that diversion is an essential and inherent part of the permission granted.
Contributors
Partner
Solicitor
