Swindon Borough Council v Secretary of State for Housing Communities and Local Government & Anor

A planning permission is construed objectively, by asking what a reasonable reader with appropriate planning knowledge would understand from the permission read as a whole. Natural and ordinary meaning, the purpose of the consent, related conditions, incorporated plans and stated reasons are relevant. Extrinsic material is admissible only where the permission is ambiguous. Where planning legislation defines a term, that definition ordinarily applies unless the context indicates otherwise. In this case, “highway” retained its ordinary meaning of a public route. A condition requiring each unit to be served by a fully functional highway therefore required the access roads, including the links to the wider development, to be available for public passage.

The Council brought a statutory review under section 288 of the Town and Country Planning Act 1990 against a Planning Inspector’s decision allowing DBS Symmetry Ltd’s appeal. The Inspector had upheld an application for a Certificate of Lawfulness concerning the formation and use of private access roads at an employment development in Swindon.

The dispute concerned the construction of condition 39 of the outline planning permission. The Council argued that the condition required the access roads to be public highways. DBS and the Secretary of State argued that “highway” referred only to construction standards and meant a road capable of carrying traffic, without public rights of way.

1. Claim allowed. The Inspector’s decision was quashed and the Certificate of Lawfulness was set aside.
2. Planning permissions are public documents, and their conditions require clarity and precision. Their interpretation is nevertheless an objective exercise comparable to the interpretation of other legal documents. The court asks what a reasonable reader, assumed to possess some knowledge of planning law and practice, would understand from the words read in context. The permission must be read as a whole, including its purpose, related conditions, incorporated documents and express reasons. Extrinsic evidence is relevant only if the wording is ambiguous (paras [28]-[33]).
3. Where planning legislation defines a term, the statutory definition applies in the permission unless the context clearly requires otherwise. “Highway” has no single meaning in every legal context, but its ordinary and common-law meaning is a way over which the public have rights of passage. The statutory definitions of highway sub-species in the Highways Act 1980 reinforced that understanding (paras [47]-[56]).
4. Condition 39 was directed specifically to the access roads shown in the incorporated masterplan and required each unit to be served by a “fully functional highway” before occupation or use. Read with the conditions requiring highway linkages, footpaths and cycleways connecting the site to the wider New Eastern Villages development, it required public roads and public routes, not merely privately controlled roads constructed to a specified standard. The reference to “public highway” in the reason for the condition did not change that conclusion (paras [62]-[75]).
5. The absence of a section 106 obligation expressly dedicating the roads to public use did not compel a different construction. The requirement was for a planning purpose, fairly and reasonably related to the development, and was not shown to be irrational. The condition therefore operated according to its natural meaning (paras [34]-[45], [67]).

The judgment does not state any earlier appellate decision in the same proceedings. It was a first-instance statutory review of the Planning Inspector’s decision dated 6 November 2018.