Town and country planning – Planning permission – Certificate of lawful use or development – Appellant developer appealing against decision of High Court that planning condition attached to grant of planning permission required dedication of roads as highways – Whether condition lawfully requiring public to have rights of passage over roads to be constructed as part of the development – Appeal allowed
The appellant’s predecessors applied to the first respondent local authority for planning permission for commercial developments on the north-eastern outskirts of Swindon to the south of the A420. It was part of the New Eastern Villages which were identified as a strategic allocation to deliver sustainable economic and housing growth, including the provision of about 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses.
The application was accompanied by drawings showing highways extending to the site boundaries to show the connectivity of the site to surrounding land. They included two major roads going past the development parcels to the edge of the site. Planning permission was granted subject to conditions. Condition 39 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 appellant applied to the first respondent for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of roads within the development as private access roads would be lawful. The first respondent refused the certificate but a planning inspector appointed by the second respondent secretary of state allowed the appellant’s appeal against that decision, certifying that the use of the access roads for private use only would be lawful.
The High Court allowed the first respondent’s application for judicial review of that decision: [2019] EWHC 1677 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) Whether a planning condition was lawful depended on satisfying the so-called Newbury criteria: The conditions imposed had to be for a planning purpose and not for any ulterior one, and they had to fairly and reasonably relate to the development permitted. Also, they were not to be so unreasonable that no reasonable planning authority could have imposed them. The power to impose conditions on the grant of planning permission was narrower than the power to enter into planning agreements or to accept planning obligations: Newbury District Council v Secretary of State for the Environment [1981] AC 578 applied. Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd [2017] UKSC 66; [2017] PTSR 1413 and R (on the application of Wright) v Forest of Dean District Council [2019] EGLR 3 followed.
(2) The Court of Appeal in Hall & Co Ltd v Shoreham by Sea Urban District Council [1964] 1 WLR 240 established a recognised principle, which was binding on the court, that a condition requiring a developer to dedicate land which he owned as a public highway without compensation would be an unlawful condition. Whether the unlawfulness was characterised as the condition being outside the scope of the power because it required the grant of rights over land rather than regulating the use of land, a misuse of a power to achieve an objective that the power was not designed to secure, irrational in the public law sense or disproportionate did not matter. If the condition could not be severed from the grant of planning permission the consequence would be that the planning permission could not standeither.
(3) When interpreting a planning permission, the court had to ask itself what a reasonable reader would understand the words to mean in the context of the other conditions and of the consent as a whole. That was an objective exercise in which the court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words and common sense. In carrying out that exercise, there was no absolute bar on the implication of words, although the court would be cautious in doing so. There were no special rules applying to planning conditions. Like any other document, a planning permission had to be interpreted in context which included the legal framework within which permissions were granted: Lambeth London Borough Council v Secretary of State for Housing Communities and Local Government [2019] EGLR 42 considered.
(4) Where a condition attached to a planning permission purported to exclude a land owner’s existing rights, the words used in the relevant condition, taken in their full context, had to clearly evince an intention by the local planning authority to make such an exclusion. Faced with a choice between two realistic interpretations, the court would prefer an interpretation which resulted in the clause or contract being valid as opposed to void (the validity or validation principle). If the contract was “capable” of being read in two ways, the meaning which would result in validity might be upheld even if it was the less natural construction: Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357, Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192; [2017] PLSCS 80 and Lambeth London Borough Council v Secretary of State for Housing Communities and Local Government [2018] EWCA Civ 844; [2018] PLSCS 73 considered.
(5) If the judge here was right in her interpretation of the condition, the condition (and probably the whole planning permission) was invalid. In those circumstances, the validation principle came into play. Condition 39 simply imposed a requirement concerning the manner of construction of the access roads and required them to be capable of functioning as a highway along which traffic could pass. It did not require the constructed access roads to be made available for use by the general public. The inspector’s interpretation was a realistic one even if it was not the most natural. The validation principle therefore applied and condition 39 should be given the meaning that she ascribed to it.
Richard Humphreys QC (instructed by Jones Day) appeared for the appellant; Richard Harwood QC (instructed by Swindon Borough Council) appeared for the first respondent; Richard Honey and Charles Streeten (instructed by the Government Legal Department) appeared for the second respondent.
Eileen O’Grady, barrister
Click here to read a transcript of DB Symmetry Ltd v Swindon Borough Council and another
