09 Nov 2020

DB Symmetry Limited v Swindon Borough Council and Secretary of State for Communities and Local Government

This case serves as a useful reminder that the power to impose conditions on the grant of planning permission is narrower than the power to enter into planning agreements or to accept planning obligations. It will be of interest to developers and authorities alike dealing with development and creation of new highway/s.

Potential impact of the judgment

  • The judgment confirms and restates the law in this area as understood by most practitioners: a condition cannot positively require the dedication of a highway.
  • The judgment suggested that the most appropriate way to secure the dedication of highways was via planning obligations and/or Section 38 Agreements dealing with the detail of future control, ownership and maintenance of new highways.

Background

The 'NEV' (New Eastern Villages) was intended to be a series of interconnecting villages forming part of the Swindon local development plan. The local planning authority Swindon Borough Council granted outline planning permission in June 2015 to DB Symmetry (the developer) with conditions designed to ensure that a network of roads, footpaths and other access routes connect the NEVs to each other and to the wider transport network, including a junction of the A420.

The developer applied to Swindon for a certificate of lawfulness (under section 192 TCPA 1990) that the formation and use as private access roads would be lawful. Swindon refused the application and the developer subsequently appealed. An experienced planning inspector allowed the appeal. Swindon then applied for a statutory review of the inspector's decision. The case was heard by the Court of Appeal.

The dispute

The appeal turned on the interpretation of Condition 39, which stated:

"Roads

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.

Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety."

Swindon argued that the condition required the developer to dedicate the roads as public highways. The developer, (supported by the Secretary of State) argued that the condition merely regulated the physical attributes of the roads.

The judgment

Lord Justice Lewison delivered the unanimous judgment rejecting the appeal for the following reasons:

  1. Condition 39 does not expressly require dedication for public use.
  2. It wasn't clear from the permission whether some of the other conditions e.g. creating turning spaces, were to be construed as highway or not.
  3. The wording of the condition seems to differentiate between 'highway' and 'public highway'.
  4. The condition refers to 'construction' of the roads only, not usage.
  5. The reason for imposing the condition was stated to be to ensure occupiers had access to the public highway. This would be satisfied even without public dedication.
  6. Ambiguous descriptions of the access system required under the condition 38 are a poor way to oblige a developer to dedicate his land.
  7. The power to impose conditions on the grant of planning permission should not be interpreted as derogating from the rights of the owner to exercise his property rights, without express wording. The right Lord Justice Lewison refers to is the right to forbid access to the land to anyone who enters it without the owner's permission, a right inherent in the possession of land, which is not dependent on the construction of roads.
  8. The planning permission failed to mention repair of the roadways once constructed. Although it is legally possible to create a newly constructed highway which no one is liable to repair, in modern times that is unusual. Lord Justice Lewison gave no further explanation, but presumably his view was that without express allocation of responsibility for maintenance, there is no responsibility assumed by Swindon.
  9. In Lord Justice Lewison judgment, precedent in Hall & Co Ltd V Shoreham Urban District Council [1964] imposes an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission. In Hall the planning condition explicitly required transfer of land rights (not ownership) to the council in very similar circumstances during the creation of an industrial site where a trunk road had to be created along the outside of the site under one of the planning conditions. In Hall the court voided the condition and it was decided that the planning permission could not stand either because the condition could not be severed from the grant of planning permission. Lord Justice Lewison held that in this case condition 39 could not be interpreted in a way that would be contrary to Hall.
  10. A mechanism for adoption of a highway as a public highway exists (section 38 Highways Act 1980) and a section 106 agreement could have required works to bring roads to adoption standards. Neither was used here. (Lord Justice Lewison noted that the heading to what became Condition 37 included a reference to s38 agreement: 'Power of highway authorities to adopt by agreement'.)
  11. The original inspector is an expert and the courts should give "some weight" to that experience and expertise.

Lord Justice Nugee concurred. Lord Justice Arnold concurred for the same reasons and that the validation principle confirmed the inspector's interpretation. (Great Estates Group Ltd v Digby – if a clause is capable of being read in two ways, the court will prefer an interpretation which results in the clause or contract being valid as opposed to void.)

Comment

This case serves as a useful reminder. What may be included in a planning condition is narrower than what a person may agree to be bound by in a planning obligation.

Lord Justice Lewison was clear that Hall established a recognised binding principle and that a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition.

Lord Justice Lewison emphasised that a planning obligation cannot be "imposed" by a local planning authority. A planning obligation/ section 106 agreement can only result from an agreement, or from a unilateral undertaking offered by the developer. If no satisfactory agreement is made (or undertaking offered), permission may be refused.

In this case, as envisaged by the resolution to grant, the local planning authority had entered into an agreement with the developer and the owners of the land under section 106 subject in the usual way to the grant of planning permission. Crucially, however there was no collateral agreement pursuant to section 38 of the Highways Act 1980 to ensure that the highway would subsequently be dedicated as public highway.

No mention was made of the case Grampian Regional Council v City of Aberdeen (1984) 47 P&CR 633 case. In that case the House of Lords confirmed the validity of negatively worded conditions and such a condition could perhaps have provided a potential solution in the Symmetry case - had one been attached to the planning permission. 'Grampian' conditions provide that a planning permission should not be acted upon until certain things to be done on land, not within the control of the applicant, are done. A negative suspensive condition would only be unlawful if it is otherwise not relevant to the development or there are "no prospects at all" that the applicant may be able to fulfil the requirements of the condition within the time limits allowed by the condition.

If you have any questions arising from the above please do not hesitate to contact one of our development specialist or your usual Womble Bond Dickinson contact.