Scope of Planning Conditions

DB Symmetry Ltd and another v Swindon Borough Council [2022] UKSC 33

 

The key takeaways

The Supreme Court found that:

1. a planning condition requiring the dedication of roads as public highways would be unlawful; and
2. condition 39 to the permission in question did not require dedication as public highway.

The judgment gives a useful summary of the tests for the lawfulness of conditions, with reference to the Newbury case. As a result, the case serves as a useful reminder that the broad scope of the power to impose conditions at sections 70 and 72 of the 1990 Act does not give unlimited scope to the issues to be addressed by conditions.

On the facts of the case, the key point is that dedication as public highway can be secured in association with a planning permission, but this can’t be by way of a condition. Rather, as was expressly acknowledged by the Court, a requirement to dedicate roads as public highways could be secured by way of a planning obligation, with the subsequent dedication being achieved through a section 38 agreement.

To broaden the point to a more general application, the key takeaway is that developers and local authorities should bear in mind the tests for planning conditions and planning obligations when applying for or granting permission. In doing so, the most appropriate route to secure any requirements should be considered, be that by way of condition, planning obligation or other means. While the case dealt with highways, the judgment (and the NPPG) should also be considered in the context of any proposed requirement for the transfer of land.

 

The facts

The development in question was one of a series of sites, with the intention being for the sites to be linked. To achieve this, the proposed development included access roads from the A420. Condition 39 to the planning permission 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 developer’s original appeal was in response to the Council’s refusal of an application for a certificate of lawfulness of proposed use or development. In making this application, the developer was seeking to establish that the roads on the development could remain as private roads, such that a charge could be imposed on neighbouring developments for access. However, the Council refused the application on the basis that condition 39 required the roads to be dedicated as public highway, such that the use as private roads would not be lawful.

The two issues considered by the Supreme Court reflected those previously considered by the Court of Appeal and were:

1. whether a planning condition could require the dedication of roads as public highways; and
2. whether Condition 39 required dedication.

Prior to the Supreme Court’s judgment, the Inspector found that Condition did not require dedication as highway. While the High Court took the opposite position, this was then reversed by the Court of Appeal, which agreed with the Inspector’s interpretation and further held that a condition that required the dedication of land as a public highway would be unlawful.

 

The findings

The Supreme Court upheld the Court of Appeal’s judgment. In relation to (1), the Court held that while sections 70 and 72 of the 1990 Act did not impose strict limits on the scope of conditions, those sections were to be read in the context of the wider Act, including the provisions in respect of planning obligations and the compulsory acquisition of land.

In that context, a key focus of the judgement was on the availability to the Council of other powers to require dedication of roads, either through the voluntary agreement of the developer or through the use of powers of compulsory acquisition, along with the payment of compensation. Both of those methods were contrasted with the unilateral imposition of a condition.

In relation to (2), the Court gave six reasons for its interpretation. One of these considered the position in policy and practice and, in that context, it should be remembered that the NPPG states that conditions cannot require that land is formally given up to other parties, such as the local highway authority.

If you have any questions about the potential implications of the DB Symmetry case for your business, please contact Henry Jeffreys, an associate in our Planning and Land Use team.