Formation of an Access - Public forum - Planning Advisory Service (PAS)

No, on the contrary - As you will know, 1. Section 366(1) TCPA 1990 (Interpretation) does helpfully say this: “engineering operations” includes the formation or laying out of means of access to highways 2. The definition of "engineering operation" is not defined but in Fayrewood Fish Farms v SSE [1984] JPL 267 the court held that an engineering op. could be an op. which would be generally supervised by an engineer (including highway engineers as well as civil engineers) but that it was unnecessary that it should have to be so supervised. 3. Article 3(6) GPDO 1995 makes the position clear "development which requires or involves the formation ......."

So even if ... for example ... all you did was say remove a bit of a hedge (not in itself an engineering operation) ... by virtue of S336 because the gap could be used as an access it would still come within the extended definition!

There have been appeal decisions where the removal of a fence/hedge does not require planning permission, whereas the removal of part of a wall has resulted in some inspectors saying that it was the formation of an access. However, if the work to create a crossover is carried out by a local council under the Highways Act, it may not be development. s55 of the 1990 Act also exempts works carried out by Local Authorities for maintenance or improvement works within the boundaries of a road.

Mike - you have not explained whether this is site specific or in general but going on your example of removal of a section of hedge this in itself does not constitute develoment as you know. It may be one of three components to create an access, the second and third components being laying of a hard surface - hardcore, tarmac, gravel or whatever, and creation of a vehicle crossing over the highway which may or may not involve a kerb drop. 'Other operations' (s.55 TCPA1990) form part of the definintion of operational devt. This seems to be a 'catch all' provision relaing to the notion of physical change on land. In a 1981 appeal decision the SoS ruled that the tipping of soil on land was not an engineering op. (because the nature of the works had not been properly planned in advance), but was nonetheless an 'other operation' for which pp was required. The gap in the hedge may be evidence of intention to use this as an access way but a proper access (op. devt.) has not been created.

Martin. That's the conclusion I was coming to, i.e. not every new access will involve 'formation' as that implies someting greater that a de minimis action such as the removal of a fence or a bit of hedge, and then driving through the gap. Sue Taylor very helpfully sent me details of a couple of appeal cases that would support this line of argument! Cheers. Mike