DB Symmetry Ltd v Swindon Borough Council & Anor

A planning condition cannot require a developer to dedicate land as a public highway without compensation. The power to impose conditions is narrower than the power to secure consensual planning obligations.

A planning permission is interpreted objectively and in its full legal and factual context. Where it has two realistic meanings, the court should prefer the meaning which preserves its validity, even if that meaning is less natural. Clear words are required before a condition is construed as removing an owner’s existing property rights.

A condition requiring access roads to be constructed as fully functional highways regulated their physical construction. It did not require their dedication to public use.

Swindon Borough Council granted the developer outline planning permission for employment development within a wider strategic development area. Condition 39 required proposed access roads and associated areas to be constructed so that each unit was served by a fully functional highway before occupation.

The developer sought a certificate under section 192 of the Town and Country Planning Act 1990 confirming that the roads could lawfully remain private. A planning inspector allowed its appeal and granted the certificate. Andrews J subsequently allowed the council’s statutory-review claim, holding that the condition required public rights of passage: [2019] EWHC 1677 (Admin).

The central issues were whether a planning condition could lawfully compel uncompensated dedication of land as a public highway and whether condition 39 had that meaning.

1. Appeal allowed. Condition 39 regulated the construction of the access roads. It did not require their dedication as public highways. Lewison LJ gave the principal judgment. Arnold and Nugee LJJ agreed, with Arnold LJ regarding the inspector’s construction as the correct one independently of the validation principle.

2. The decision in Hall & Co Ltd v Shoreham by Sea Urban DC established a binding principle that a planning condition cannot require an owner to dedicate land as a public highway without compensation. That prohibition is absolute. It applies equally whether the owner must transfer the land or merely confer public rights over it. The availability of established statutory and consensual mechanisms for obtaining highway rights reinforced that conclusion.

3. Planning conditions and planning obligations have different legal scopes. Section 106 of the Town and Country Planning Act 1990 permits obligations which may require operations, restrict or prescribe land use, or require payments. Such an obligation arises only through agreement or a unilateral undertaking. Regulation 122 of the Community Infrastructure Levy Regulations 2010 did not enlarge the power to impose conditions.

4. A planning permission is construed objectively. The court asks what a reasonable reader would understand from the natural and ordinary meaning of the words, the permission as a whole, its purpose, other relevant conditions, the statutory framework, planning practice and common sense. Words may be implied cautiously. Clear language is required before a condition is read as excluding an owner’s existing property rights.

5. Where two realistic constructions are available, the validation principle favours the construction which preserves validity, even if it is less natural. The inspector’s interpretation was realistic. Condition 39 contained no express requirement of dedication or grant of passage. Its language addressed construction, distinguished access roads from the public highway and left uncertain which land would be dedicated. No section 38 agreement or equivalent mechanism had been used. The condition therefore permitted private access roads.

6. Some weight was also due to the interpretation of the experienced specialist planning inspector. Her certificate that private use of the access roads would be lawful was restored.

1. Court of Appeal (Civil Division): The developer’s appeal was allowed. The planning inspector’s interpretation of condition 39 and certificate permitting private use of the access roads were restored: [2020] EWCA Civ 1331.
2. High Court, Planning Court: Andrews J allowed the council’s statutory-review claim and held that condition 39 required the roads to be dedicated for public use: [2019] EWHC 1677 (Admin).
3. Planning inspector: The inspector allowed the developer’s appeal against refusal of a section 192 certificate and certified that private use of the access roads would be lawful.