I mentioned in the round up of our 2022 case law update during our webinar two weeks ago that the Supreme Court judgment in DB Symmetry Ltd and another (Respondents) v Swindon Borough Council (Appellant) [2022] UKSC 33 was awaited. This was handed down this morning, 14 December 2022.

Legal issues in question

The Supreme Court was tasked with considering two issues;  firstly, whether it is lawful for a planning authority, in granting planning permission for a development, to impose a planning condition that a developer will dedicate land within a development site to be a public highway and secondly, when properly interpreted, does the planning condition in issue have that effect?

Facts of the case

The case considers the interpretation of a condition that was attached to the grant of outline planning permission by Swindon Borough Council (BC)  for a development site in the outskirts of Swindon. The condition in question, Condition 39, reads as follows:

"The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a matter as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use. Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety."

DB Symmetry Ltd ("the developer") applied under section 192 of the Town and Country Planning Act 1990 (as amended) for a certificate of lawfulness of proposed use or development (“the certificate”) to the effect that the formation and use of private access roads in the site as private access roads was lawful. Swindon BC refused to grant the certificate, asserting that the condition imposed on the developer the obligation of dedicating the access roads shown as highways on the Illustrative Landscape Masterplan as public highways. The developer appealed against the refusal to grant the certificate, contending that the condition simply regulated the physical attributes of the roads to be constructed before the site was brought into use and that the section 106 agreement entered into did not relate to the use or dedication of the roads.

The Secretary of State allowed the appeal which Swindon BC then challenged.  The High Court upheld the challenge but this was overturned by the Court of Appeal, with Swindon BC then appealing to the Supreme Court. 

Judgment 

The Supreme Court unanimously dismissed the appeal on both legal issues.

Issue (1): lawfulness of the condition 

The Justices found that it is not lawful for a condition to be imposed by a local planning authority to dedicate land as public highway. Agreeing with the Court of Appeal, the Supreme Court made reference to Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 as authority that a planning authority cannot impose such a condition on a landowner to avoid the payment of compensation.

The Court clarified the requirements of a valid planning condition. Planning conditions must: (1) be imposed solely for a planning purpose, without ulterior motive; (2) fairly and reasonably relate to the permitted development; and (3) not be so unreasonable that no reasonable planning authority would have imposed them.

It is common practice to include an obligation on a landowner to dedicate part of its land under a section 106 agreement or highways agreement, and an obligation to dedicate the road as a public highway in this way would have been a successful means for Swindon BC to achieve that outcome, rather than a condition. 

The Supreme Court highlighted the fundamental difference between a planning obligation which must be agreed by both parties, and a planning condition which is unilaterally imposed by a local planning authority. It held that a planning authority wanting to ensure the dedication of roads within a development site as public highway should negotiate an agreement with the landowner rather than imposing a condition on the planning permission.

Issue (2): interpretation of the condition 

Planning conditions are to be interpreted in the same way as other public documents with the reader asking the question: "what would a reasonable reader consider this to mean in the context of other conditions and the consent as a whole?" This is objective, and the Court should have regard to the natural and ordinary meaning of the words, the purpose of the consent, any other conditions and common sense.

The Supreme Court held that Condition 39 did not require the landowner to dedicate the land as public highway, as:

• The condition did not include any requirement to dedicate the access roads as public highway;
• The condition was located within a suite of conditions regarding the design;
• In a planning law context, a planning authorities’ main means of securing the dedication of roads should be through a section 106 or highways agreement.

The Supreme Court therefore found condition 39 to be valid, but noted that it in itself did not inflict the requisite requirement for dedication of the access roads as public highways.

Key points arising from the judgment

This decision will be an important reminder to all those involved in the planning process about the appropriate means to secure the dedication of highway and that conditions should be interpreted in a in a similar way to other public documents. 

Please do contact us if you would like to discuss the implications of this decision.