In DB Symmetry Ltd and another v Swindon Borough Council [2022] UKSC 33; [2022] PLSCS 201, the Supreme Court has confirmed that a planning condition requiring the dedication of land as a public highway is unlawful.
Swindon Borough Council granted DB Symmetry planning permission for an employment development, subject to a condition requiring that the onsite access roads be constructed so that each unit would be served by a fully functional highway. DB Symmetry applied for a lawful development certificate to confirm the condition did not require dedication of the access roads as public highways.
When the council refused their application, DB Symmetry appealed to the planning inspectorate who certified that private use only of the access roads was lawful. The council successfully challenged the inspector’s decision in the High Court. However, this was overturned by the Court of Appeal. The Supreme Court has upheld that decision.
First, the court found a planning condition requiring the dedication of roads would be unlawful, placing particular weight on Hall & Co Ltd v Shoreham-by-Sea UDC [1964] 1 All ER 1, which held such a condition would be so unreasonable it would be ultra vires. The court pointed out that Circular 58/51, Circular 11/95 and National Planning Practice Guidance support this position with the NPPG providing that “Conditions cannot require that land is formally given up (or ceded) to other parties”. The court also drew a clear distinction between unilaterally imposed planning conditions and voluntarily entered planning obligations by which dedication can be secured but was not in the section 106 Agreement entered into in this case.
Secondly, the court applied the approach to interpretation from Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 – which is to ask what a reasonable reader would understand the words to mean by applying their natural and ordinary meaning in the context of the other conditions, the consent as a whole and common sense – and found the condition addressed the quality and timing of the access roads’ construction and did not require their dedication in any event.
The court gave six reasons for this:
(i) It contained no requirement to dedicate or grant public rights;
(ii) It contained no proper guidance regarding the extent of land to dedicate;
(iii) The reason given made no reference to ensuring there was a public highway;
(iv) It drew a distinction between the access roads and public highway;
(v) It appeared within a list of conditions predominantly addressing the access’s design, construction, and physical characteristics; and
(vi) The practice of securing dedication through section 106 agreements suggests a condition would not have been used.
This final ruling makes very clear that securing dedication of land must be by statutory agreement with Lord Hodge stating: “I reach this conclusion without regret as to hold otherwise would be to undermine a foundational rule of the planning system on which people have relied for decades and create uncertainty where there should be certainty.”
Erica Ives is a solicitor in the planning and environmental team at Irwin Mitchell