DB Symmetry Ltd and another v Swindon Borough Council

Town and country planning – Planning permission – Certificate of lawful use or development – Court of Appeal allowing appeal by developer against decision of High Court that planning condition attached to grant of planning permission required dedication of roads as highways – Local planning authority appealing – Whether condition lawfully requiring public to have rights of passage over roads constructed as part of development – Appeal dismissed The first respondent’s predecessors applied to the appellant local authority for planning permission for commercial developments on the north-eastern outskirts of Swindon. It was part of an area identified as a strategic allocation to deliver sustainable economic and housing growth, including the provision of about 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The application was accompanied by drawings showing highways extending to the site boundaries to show the connectivity of the site to surrounding land. Planning permission was granted subject to conditions. Condition 39 provided: “The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner 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”. The first respondent applied to the appellant for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of roads within the development as private access roads would be lawful. The appellant refused the certificate but an inspector appointed by the second respondent secretary of state allowed an appeal against that decision, certifying that the use of the access roads for private use only would be lawful. The High Court allowed the appellant’s application for a statutory review of that decision: [2019] EWHC 1677 (Admin). The first respondent then successfully appealed to the Court of Appeal: [2020] EWCA Civ 1331; [2020] PLSCS 186. The appellant appealed. Held: The appeal was dismissed. (1) The wording of sections 70 and 72 of the 1990 Act did not expressly set clear limits on the scope of planning conditions. Nonetheless, those statutory provisions relating to planning conditions did not exist in a vacuum but fell to be interpreted in the context of the 1990 Act as a whole, including the provisions relating to planning obligations and compulsory purchase. The judgment in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240, which considered the circumvention of the relevant compulsory purchase regime by a purported planning condition, was authority for the proposition that a planning authority might not lawfully require a landowner by means of a planning condition to dedicate land as a public highway. (2) Planning obligations were those which were, generally, agreed between the local planning authority and the owner of the land under section 106 of the 1990 Act. A planning obligation differed from a planning condition, which was imposed by the local planning authority. It was a common planning practice to include in an agreement under section 106 of the 1990 Act an obligation on the developer and owner of the land to dedicate part of its land for public use. That was not done in this case. In Newbury District Council v Secretary of State for the Environment [1981] AC 578, the House of Lords confirmed that the power to impose planning conditions was not unlimited and that there were three legal tests for the validity of such conditions: (i) the conditions had to be imposed for a planning purpose and not for an ulterior one, (ii) they had to fairly and reasonably relate to the permitted development, and (iii) they were not to be so unreasonable that no reasonable planning authority could have imposed them. (3) There was a fundamental conceptual difference between a unilaterally imposed planning condition and a planning obligation: the developer could be subjected to a planning obligation only by its voluntary act, normally by entering into an agreement with the planning authority, and not by the unilateral act of the planning authority. There might be more scope for a developer to negotiate the terms of an agreement under section 106 of the 1990 Act as the planning authority would often have an interest in encouraging development within its area. Therefore, the options for the planning authority, which wanted to give permission to a proposed development, were to negotiate an agreement with the landowner or to exercise powers of compulsory acquisition and pay compensation. Planning conditions were to be interpreted in a manner similar to the interpretation of other public documents. The court had to ask itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. That was an objective exercise in which the court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words and common sense. (4) Condition 39 did not purport to require the dedication of the access roads as public highways. Instead, it addressed the quality and timing of the access roads’ construction. The reason which the appellant gave for the condition disclosed that the purpose of the condition was that there were to be adequate means of access to the developed units in the interests of highway safety. It addressed the need for the access roads to be constructed before the development was occupied. It did not seek to ensure that there was a public highway through the site. The wider context of the legal framework of planning law, including the landmark case of Hall v Shoreham, the well-established government guidance on the imposition of planning conditions, and the practice of local planning authorities of securing the dedication of roads by means of a section 106 agreement, strongly suggested that the appellant did not seek to impose a requirement of the dedication of the access roads etc as public highways in this condition which made no mention of such dedication. Condition 39 was therefore a valid planning condition which did not purport to require the dedication of the access roads etc as a public highway. Richard Harwood KC and Victoria Hutton (instructed by Swindon Borough Council) appeared for the appellant; Richard Humphreys KC (instructed by Jones Day) appeared for the first respondent; Richard Honey KC and Charles Streeten (instructed by Government Legal Department) appeared for the second respondent. Eileen O’Grady, barrister Click here to read a transcript of DB Symmetry Ltd and another v Swindon Borough Council