The interpretation and validity of planning conditions

In DB Symmetry Ltd v Swindon Borough Council and another [2020] EWCA Civ 1331; [2020] PLSCS 186, the Court of Appeal has provided some useful clarification on the correct approach to interpreting planning conditions and their lawfulness. DB Symmetry was granted planning permission by Swindon Borough Council for an employment development, subject to a condition requiring that the on-site access roads be constructed so that each unit would be served by a fully functional highway. DB Symmetry subsequently applied to the council for a lawful development certificate to confirm that the condition did not require dedication of the access roads as public highways. When the council refused the application, DB Symmetry appealed to the Planning Inspectorate, which certified that private use only of the access roads was lawful. The council successfully challenged the appeal decision in the High Court. However, this decision was overturned by the Court of Appeal, which found that DB Symmetry was not required to dedicate the access roads as public highways. The court set out a number of reasons for upholding the Planning Inspectorate’s decision and, in doing so, clarified the following principles in relation to the interpretation of planning conditions and their lawfulness, attaching particular weight to the judgment handed down in Hall & Co Ltd v Shoreham-by-Sea UDC [1964] 1 All ER 1: A condition requiring a developer to dedicate land as a public highway without compensation would be unlawful, with an absolute ban on such conditions being imposed by Hall. The correct approach to interpreting planning conditions is to ask what a reasonable reader, equipped with some knowledge of planning law and practice, would understand the words to mean by applying their natural and ordinary meaning in the context of the other conditions, the consent as a whole and the legal framework. The court should prefer an interpretation of a planning condition which results in it being valid if this is possible. Although the court may imply words, it should be cautious in doing so. If an invalid condition cannot be severed from the grant of planning permission, the planning permission itself will also be invalidated. If a condition is to exclude a landowner’s existing rights, the words used in the condition must clearly show that this was the intention of the local planning authority. The requirement to dedicate, which is a necessary prerequisite of the creation of a highway, must be made expressly. The court also pointed out that if the council wanted to secure the dedication and adoption of the access roads then this was achievable by entering into an agreement under section 38 of the Highways Act 1980 or under section 106 of the Town and Country Planning Act 1990, which could be secured by a Grampian condition. This judgment sends a very clear message to local planning authorities about the ambit and role of planning conditions and the need to consider carefully both the wording of conditions and whether any other statutory mechanism may be more appropriate in securing their desired outcome. Erica Snellgrove is a solicitor in the planning team at Irwin Mitchell