Can a planning condition require a developer to dedicate land as public highway?

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

The Supreme Court has clarified that a planning condition cannot require a developer to dedicate land within a development site to become a public highway.

Facts

The site comprised agricultural fields and formed part of the proposed New Eastern Village north-east of Swindon being a strategic allocation of land which would provide about 8,000 homes, 40 hectares of employment land and associated retail, community, education, and leisure uses. In 2015, Swindon Borough Council granted outline planning permission for employment development and a new junction to the A420 subject to 50 conditions.  

Importantly, the Illustrative Landscape Masterplan referred to in conditions clearly envisaged that there would be access road connections between the site and other developments comprised in the New Eastern Village, allowing for the other development sites to connect with the wider road network.

This central issue related to condition 39 of the outline planning permission:

• 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.

The Council argued that this condition required the access roads shown as highways on the Illustrative Landscape Masterplan to be dedicated as public highway.  DB Symmetry however contended that it simply regulated the physical attributes of the roads to be constructed before the site is brought into use.

On this basis DB symmetry applied in June 2017 for a certificate of lawfulness of proposed use or development to confirm that the formation and use of private access roads in the site as private access road was lawful. The application was rejected by Swindon Borough Council and on appeal an Inspector granted the certificate sought. The Council appealed against this decision and the case went up to the Supreme Court.

Decision

Two principal issues were put before the Supreme Court:

1. A general question of whether a local planning authority can impose by a planning condition an obligation on the developer of land to dedicate roads, which it constructs as part of its development, as public highway; and
2. Whether this condition 39 was capable of being interpreted as requiring the dedication of public rights of way over the access roads.

On the first question, the Supreme Court endorsed that the long-standing precedent established in Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed clearly.  Thus, the Court confirmed that it is ultra vires to require by way of planning condition the dedication of roads within a development site as public highway .

In addressing the second question, the Court first reaffirmed established principles relating to the interpretation of planning conditions with reference to the Trump and Lambeth cases.  Conditions should be interpreted in a manner similar to the interpretation of other public documents; the court must consider 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.  This objective test requires the court to have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other condition which cast light on the purpose of the relevant words and common sense.

In applying these principles, the Court set out six reasons to support the conclusion that on a proper construction, condition 39 does not require the dedication of the access roads as a public highway:

• there was no mention of a requirement to dedicate the access road as public highway and it does not otherwise require the landowner to grant any public right of way over those roads. “Highway” is capable of bearing different meanings and, in this context, if it is referring to a public highway, is consistent with an assumption that the dedication of the access roads would be dealt with in the section 106 agreement;
• the phrase “the proposed access roads, including the turning spaces and all other areas that serve a necessary highway purpose” gives no adequate guidance as to the extent of the land which it is asserted was to be dedicated as a public highway;
• the Council’s reasoning for its position is that the purpose of the condition is to ensure adequate means of access to the developed units in the interests of highway safety. It addresses the need for the access road to be constructed before the development is occupied. It does not seek to ensure that there is a public highway through the site;
• the reason given for the condition draws a distinction between the access roads and the public highway, being to provide “adequate means of access to the public highway”;
• the position of the condition in the list of conditions is in a context where the planning authority is predominantly addressing the design, method of construction, and physical characteristics of the means of access; and
• the wider legal framework (including the landmark case of Hall v Shoreham, the well-established government guidance on the imposition of planning conditions, and the practice of securing the dedication of roads by section 106 agreement) would strongly suggest that the Council did not seek to impose a requirement of the dedication of the access roads as public highway in this condition.

It is relevant that the Court did accept that the Council would have been wholly justified in terms of planning policy in requiring the owner of the site to dedicate the access roads within the site as a highway to enable the public to have rights of access to and from the other proposed development sites in the NEV south of the A420, however this ought to have been secured by a section 106 agreement.