The Supreme Court is today being asked to consider whether landowner DB Symmetry must be compensated if it is required to build a public highway in its Symmetry Park development in the outskirts of Swindon.
The council says the road is a condition of the development’s planning permission. The developer argues it is unlawful for it to be required to build a public highway for public use, rather than a private road, and if it does, it should be compensated.
It is part of a long-running legal battle between the council and DB Symmetry, one of the country’s largest strategic landowners, which rebranded as Tritax Symmetry in 2019.
Specifically, the dispute is over condition 39 of the planning permission document, which stated the access roads “shall be constructed in such a manner as to ensure that each unit is served by fully functional highway”.
The council argues this condition means the developer must build a “highway”, or a road for public use. Tritax, however, argues that the condition regulates the physical attributes of the road, not whether or not there should be public access.
At the start of the Supreme Court hearing this morning, Richard Harwood QC, for Swindon, summarised his case.
“In a nutshell, my lord, in some cases, it may be reasonable to consider the provision of highways, that is ways which are open to the use of the public, is required to make a developer’s scheme acceptable in planning terms.
“Connectivity between places is often a vital part of the public realm and of good planning. This case is a paradigm example where a scheme required with it the provision of highways.”
He added: “In those circumstances, it is reasonable for the developer to be expected to provide the highways to make their scheme acceptable. It’s not for the local authority to have to provide the highways for the developer, and compensate the developer for the land involved in doing so.”
Swindon is challenging a decision by a planning inspector, upheld by the Secretary of State and, in an October 2020 judgment, the Court of Appeal.
Lawyers for Tritax argue that a 1964 Court of Appeal judgment in Hall & Co Ltd v Shoreham by Sea Urban DC established a legal principle that a planning condition can not lawfully require a developer to dedicate land for public purposes without the payment of compensation.
The Court of Appeal backed this interpretation.
The hearing is scheduled to last one day and is being heard by judges Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose. A judgment will be given at a later date.
DB Symmetry Ltd v Swindon Borough Council and another
Supreme Court (Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose) 12 July 2022
