Trees, third-party land and a visibility splay: the Kayte Lane challenge.

The site and the decision

The inspector's main issues included character and appearance, highway safety and whether very special circumstances existed (judgment, paragraph 8). He found the land to be grey belt, but the development inappropriate because the highway harm meant it was not sustainable. He identified a risk to highway safety from the inability to achieve and protect the necessary visibility splays, and found no very special circumstances, although he gave significant weight to the benefits, including unmet need (paragraph 9). Highway safety was one of several reasons; the inspector also found severe harm to character and appearance.

The visibility findings

Visibility could be achieved to the north. To the south it was impeded by roadside trees (paragraph 36). A large area of roadside vegetation had been removed, but the southern splay crossed land that the appellants did not own or control, and the landowner might replant. In the inspector's words, as recorded by the court, there would be "an inability to control what works take place within the area" (paragraph 37). The highway authority's position was that the splays could not be achieved within the appellants' land or the public highway (paragraph 43).

The speed evidence did not help the appellants. The survey recorded 85th percentile speeds of about 35 to 36 mph on a road with a 40 mph limit, with some vehicles above 50 mph. After the council questioned the survey method, the inspector concluded that approach speeds were likely to exceed the measured 85th percentile (paragraph 38).

The condition argument

The inspector found it "not appropriate" to use a condition to secure the visibility in this case (paragraph 37). The appellants argued that a negative, or Grampian, condition should have been considered, preventing occupation until the splay was secured (paragraphs 12 and 40). The Planning Practice Guidance allows such conditions but advises that conditions requiring work on land not controlled by the applicant often fail the tests of reasonableness and enforceability (paragraph 41).

The difficulty was evidential. No landowner agreement or easement was put before the inspector, and the January 2025 addendum described those who had carried out the vegetation works as "parties unknown". A witness statement produced after the decision said the appellants would have discussed the splays with the landowner, but did not show that the landowner had been approached (paragraph 42). The court described the omission as a failure on the part of the claimants to put the material before the inspector (paragraph 43).

What the court decided

The inspector was entitled to decide the appeal on the evidence before him, and was not obliged to make his own inquiries of the appellants; the case was not exceptional and proceeding on the written material was not unfair (paragraphs 43 and 44). He had not said that a condition on third-party land was impossible; he had concluded, rationally and after a site visit, that one was not appropriate here (paragraphs 45 and 49). The highway ground was "unarguable" (paragraph 46). The court also rejected the grounds under Articles 6 and 8 and the public sector equality duty, in which the inspector had relied on the severe risk to highway safety (paragraphs 48 to 52), and both applications failed (paragraph 53).

Points of interest and doubt

The case does not decide that a splay over third-party land can never be secured by condition. The court was clear that the inspector had not said so (paragraph 45). What it shows is that a Grampian condition needs a basis in evidence: a realistic prospect that the land will be made available. Without that, an inspector can properly conclude that a condition would not meet the tests.

It would be speculative to say whether a landowner agreement would have changed the outcome. The inspector also had concerns about speeds, and highway safety was not the only reason for dismissal. The practical lesson we take from the judgment is about the timing of evidence: material produced after the decision could not assist.

Practical points

• Map the splay against land ownership early, using title plans and the adopted highway boundary.
• Secure third-party land through an option, easement or agreement before the appeal, and put the evidence before the inspector.
• Consider maintenance as well as clearance. A splay over land where vegetation can regrow needs a means of keeping it clear.
• Make the case for a Grampian condition at the appeal stage, with evidence of a reasonable prospect of delivery, rather than relying on it in a later challenge.
• Check the survey method before relying on recorded speeds, particularly where the council may question it.