Council loses planning condition over disproportionate footway cost

A planning condition requiring a self-builder to construct a footway beside a busy Devon A-road has been removed on appeal, after an Inspector found the burden disproportionate to one new home.

Torridge District Council wanted a minimum 1.2-metre-wide footway linking Sleepy Corner at Stibb Cross, near Torrington, to the village’s existing footway network and bus stop. It had to be provided before the dwelling could be occupied.

But in appeal 6010706, decided on 30th September 2026, Inspector O Marigold concluded that the requirement was neither necessary nor reasonable. The decision expressly considered the Public Sector Equality Duty, including the consequences for disabled people.

Why Torridge imposed the planning condition

The council granted outline permission on 27th February 2026 for one self-build dwelling, with access and layout approved and the remaining matters reserved. The application reference was 1/0425/2025/OUT.

During the application, Torridge sought a footway from the site to a bus stop, replacing the grass verge. Amended drawings showed the works, and the council granted permission on that basis.

The disputed planning condition, numbered 10, required the footway before occupation. Its stated purpose was safe and suitable access for everybody. Proximity to Stibb Cross’s facilities had formed part of the council’s reasoning for accepting a dwelling here, so the walking route was a material issue.

David Adams appealed against the condition under section 78 of the Town and Country Planning Act 1990. This was an appeal against the original conditional grant, rather than an appeal following a separate section 73 application.

A busy road, but a usable verge for some

The Inspector did not dismiss the highway concerns. The A388 carries substantial traffic, including large vehicles, and walking in the carriageway itself would be unsafe given the traffic and road width.

The existing verge also had limitations. It was raised and grassed, making it unsuitable for some people, including some wheelchair users. In poor weather, mud could make it difficult to use.

However, the Inspector found the verge reasonably wide and flat, with generally good forward visibility. Its raised position provided a degree of protection from passing traffic.

Nearby homes already relied on sections without a dedicated pavement. The unchallenged evidence was that no pedestrian injury collisions had been recorded locally in recent years, despite those properties’ reliance on the verge.

That was evidence relevant to this particular decision. It was not a finding that an absence of recorded collisions proves a route safe for everyone.

Why one dwelling changed the necessity assessment

The scale of the proposal mattered. One additional dwelling was likely to generate only a small number of extra people using the route.

Taking the physical conditions, existing use and collision evidence together, the Inspector said: “I am not persuaded that the footway is necessary”.

A new pavement would plainly improve the route. The planning condition still had to be justified by what was necessary to make this development acceptable. The decision distinguishes a desirable improvement from a requirement that this particular proposal should bear.

The Inspector also considered an earlier appeal on another part of the A388 in Stibb Cross, reference APP/W1145/W/20/3249942. As described in this decision, that case involved up to ten homes and sections with little or no verge or refuge.

Those differences mattered: the earlier proposal would generate substantially more pedestrians using a less forgiving route. It did not change the conclusion on this single dwelling.

Cost mattered without a contractor’s quotation

No detailed viability figures or quotations had been submitted to establish the footway’s cost. Nevertheless, the Inspector accepted that design and installation would be expensive, particularly because of its length.

The decision does not identify a price or establish a financial threshold. The conclusion was that this planning condition imposed a burden disproportionate to the size of the proposal and was therefore unreasonable.

This is a useful application of the Planning Practice Guidance on conditions. Paragraph 005 explains that unjustifiable, disproportionate financial burdens fail the reasonableness test.

We would not read the outcome as permission to dispense with cost evidence in every appeal. Here, the Inspector could reach a conclusion from the particular works and the development’s scale. In another case, disputed costs or benefits may require much more detailed evidence.

The current planning condition tests

The revised NPPF was published on 17th August 2026, after the appeal had been made. Both parties had an opportunity to comment, and the Inspector expressly applied the current policy position.

NPPF Policy DM3 requires a proportionate approach reflecting a proposal’s scale, complexity and potential impact. Policy DM6 requires conditions to be necessary, relevant, sufficiently precise for compliance and enforcement, and reasonable in all other respects.

The PPG continues to express the familiar six tests separately: necessity, relevance to planning, relevance to the development, enforceability, precision and reasonableness. Every planning condition must satisfy all of them. Its older NPPF paragraph references should not be mistaken for the current policy numbering.

Our guide to planning conditions explains the wider framework. In this appeal, necessity and reasonableness were the decisive issues.

Equality was considered, not set aside

The most sensitive part of the decision concerns the Public Sector Equality Duty. The Inspector expressly recognised disability and the possibility that removing the footway condition “may well result in access not being suitable for all people”.

Section 149 of the Equality Act 2010 requires public authorities to give due regard to eliminating prohibited discrimination, advancing equality of opportunity and promoting good relations between people with and without relevant protected characteristics.

The Inspector said these matters had been kept at the forefront of the assessment, including the need to eliminate discrimination and promote equality of opportunity. Nevertheless, the conclusion was that requiring this footway would not be proportionate in the public interest.

That is not a finding that equality considerations are optional, or that cost removes the statutory duty. The duty was addressed as part of the decision. On these facts, the accessibility benefit did not justify retaining a planning condition the Inspector found unnecessary and unreasonable.

Nor did the Inspector conclude that the grass verge offered equivalent access to a properly constructed footway. Its limitations were expressly acknowledged.

The drawings had to change too

Allowing the appeal required more than deleting the footway planning condition. The approved-plans condition also referred to drawings showing the footway.

The Inspector therefore deleted and replaced condition 3, substituting Proposed Site Plan 02r1 and Location Plan 04. This aligned the drawing requirements with removal of the footway obligation.

It is a practical detail worth checking whenever a planning condition is challenged. If the same requirement appears elsewhere in the permission, dealing with only one condition may leave an unresolved inconsistency.

Councils can still require justified pedestrian improvements

The decision does not prevent councils requiring off-site walking improvements where the evidence justifies them. The Inspector accepted the relevance of Local Plan Policy ST10 and national transport policy to highway safety and sustainable travel.

What failed was the justification for placing this particular burden on one home, given the verge, the likely additional pedestrian use and the anticipated cost.

Where improvements are justified, their delivery may also involve separate highway approvals. Our guide to highways agreements and licences explains the distinction between planning requirements and the mechanisms for carrying out highway works.

For applicants and councils, the useful question is specific: what harm will this development cause, what works are needed to address it, and is the burden proportionate? This appeal shows why the answer cannot be taken from the road classification or a general aspiration for better footways alone.