Associate solicitor Sabah Siddiq, in our Planning & Environmental Law team, explains that the Supreme Court has held that it is unlawful to require dedication of land as public highway through a planning condition.
The recent case of DB Symmetry Ltd v Swindon Borough Council [2022] UKSC 33 confirms the position that planning conditions cannot be used to dedicate land as a public highway and that dedication of the roads and accesses should be secured through a planning obligation or compulsory purchase powers, where the landowner is entitled to compensation for the acquisition of the land.
Facts
The case concerned a planning condition requiring each unit at the site be served by fully functional highway attached to an outline planning permission for a development on the outskirts of Swindon.
DB Symmetry Ltd subsequently applied for certificate of lawfulness under s192 of the Town and Country Planning Act 1990 to confirm the lawfulness of formation and use of private access roads, including within the development as private access roads (not public highway) would be lawful. The Council refused to issue the certificate, stating that the condition imposed an obligation on the landowner to dedicate the access roads as public highways. DB Symmetry Ltd appealed the Council’s refusal to the Planning Inspectorate.
The planning inspector allowed the appeal and said that the planning condition only required construction of the roads and not its dedication. The Council challenged the Secretary of State’s decision in High Court. The High Court allowed the Council’s application for a statutory review of the planning inspector’s decision. DB Symmetry Ltd then successfully appealed the High Court judgement to the Court of Appeal, who held that a planning condition which required dedication of land without compensation will be unlawful. The Council appealed the Court of Appeal judgement.
Judgement
The Supreme Court unanimously dismissed the appeal. The Supreme Court was required to determine two principal issues.
First issue - Is it lawful to impose a planning permission, which requires a landowner to dedicate the land as public highway?
The Supreme Court held that the statutory provisions relating to planning conditions in Town and Country Panning Act 1990 does not exist in a vacuum and that it must be interpreted in the context of the Act as a whole including the provisions relating to compulsory purchase and planning obligations.
The Supreme Court referred to the case of Hall & Co Ltd v Shoreham by Sea Urban District Council [1964] WLR 240, which is the leading authority, that you cannot use planning conditions to require a landowner to dedicate land as public highway without paying compensation to the landowner. The Supreme Court held that it would have been ultra vires to require dedication of the access roads as a highway through a planning condition.
The Supreme Court went on to say that there is a fundamental difference between a planning condition which is unilaterally imposed by local planning authority, and a planning obligation which has to be agreed by all parties. The Supreme Court stated that with a planning obligation, the developer can negotiate the terms of the agreement with local planning authority who want to encourage development in the area and therefore options for the local planning authority are to either negotiate a planning obligation with the landowner and or the developer or exercise the powers of compulsory acquisition and pay compensation.
Second issue - When properly interpreted, did the planning condition intend to dedicate the land as a public highway?
On the interpretation of planning conditions, the Supreme Court referred to the case of Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; [2019] 1 WLR 4317 and said that there are no special rules for the interpretation of planning conditions and that they are to be interpreted in a manner similar to the interpretation of other public documents. The Supreme Court went on to say that when interpreting planning conditions, the court has to objectively ask the question of what a reasonable reader would understand the words to mean when reading the condition in context of the other conditions and of the consent as a whole and have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, and any other conditions.
The Supreme Court held that Condition 39 (the condition in dispute) is a valid planning condition, however the wording of the condition did not require dedication of the access road as a public highway.
Planning Condition or Planning Obligation
It is important for local planning authorities when drafting planning conditions, to consider whether the matter can be appropriately dealt through a planning condition or, whether it is more appropriate for it to be secured through a planning obligation and this will depend on the unacceptable impacts the local planning authority is trying to overcome (Paragraph 55 of the National Planning Policy Framework 2021 (NPPF)).
When determining planning applications, the local planning authorities will use planning conditions to control development. However, where the land interest is not subject of the planning application i.e. any off site facilities, the local planning authority will rely on planning obligations to control or regulate development or to secure off site financial contributions.
Paragraph 56 of the NPPF states that “Planning conditions should be kept to minimum and only imposed where there are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable on all other respects”. The Planning Practice Guidance (PPG) at Paragraph 3, refers to these as the six tests and that each of these has to be satisfied for each planning conditions that local planning authority intends to impose.
Paragraph 57 of the NPPF states that “Planning obligations must only sought where they meet all of following tests (set out in Regulation 122(2) of the Community Infrastructure Levy Regulations 2010) as amended (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development”.
Paragraph 55 of the NPPF further states “Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition” and paragraph 11 of the PPG reiterates the same advice.
Conclusion
The Supreme Court case is a reminder that local planning authorities need to be careful when imposing planning conditions for construction of roads, that the dedication of those roads granting public rights of way is secured within a legal agreement, either by entering into a planning obligation with the local planning authority or alternatively by entering into a S38 Agreement under the Highways Act.
Further, when imposing planning conditions, the Local Planning Authority need to ensure that it meets the legal requirements of the six-test referred to in the NPPF and PPG and that where the unacceptable impacts of the harm or mitigation for the development cannot be secured through a planning condition, that it is secured through a planning obligation in accordance with Regulation 122(2) of Community Infrastructure Levy Regulations 2010 (as amended).
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
