DB Symmetry Ltd and another v Swindon Borough Council

A planning authority cannot use a planning condition to require a landowner to dedicate land within a development as a public highway. General powers to impose conditions do not authorise the uncompensated acquisition of proprietary rights where the statutory scheme provides for voluntary planning obligations or compulsory acquisition with compensation.

Planning conditions are construed objectively, as public documents. A reasonable reader considers their natural meaning, the permission as a whole, related conditions, their stated purpose, common sense, and the relevant planning law and practice. A condition regulating the construction and timing of access roads does not effect dedication where it neither requires dedication nor identifies the land or public rights to be granted.

DB Symmetry Ltd acquired land forming part of a proposed strategic development. The outline planning permission required access roads to be constructed, but its section 106 agreement contained no obligation to dedicate those roads as public highways. The developer sought a certificate confirming that private use of the roads would be lawful.

A planning inspector granted the certificate. Andrews J quashed that decision, holding that condition 39 required public roads. The Court of Appeal unanimously restored the inspector’s decision: [2020] EWCA Civ 1331; [2021] PTSR 432.

The Supreme Court considered whether a planning condition could lawfully require dedication without compensation and whether condition 39 had that meaning.

1. The appeal was dismissed unanimously. Lord Hodge delivered the judgment, with which Lord Reed, Lord Kitchin, Lord Sales and Lady Rose agreed.

2. Sections 70 and 72 of the Town and Country Planning Act 1990 confer broad powers to impose planning conditions, but those powers must be construed within the statutory scheme as a whole. The established conditions of validity require a planning purpose, a fair and reasonable relationship to the permitted development, and consistency with the standard of public-law reasonableness. General statutory language does not authorise the uncompensated removal of proprietary rights without clear words or an irresistible statutory inference.

3. Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 was authority by analogy that a planning authority cannot compel a landowner, through a planning condition, to dedicate land as a public highway. Its reasoning rested on the impermissible circumvention of statutory acquisition powers carrying compensation. The principle was of general application and was not confined to Hall’s particular facts.

4. A planning obligation under section 106 of the Town and Country Planning Act 1990 is conceptually different. It depends upon the landowner’s voluntary act and may secure a result that could not lawfully be imposed by condition. Its use as a reason for granting permission is constrained by materiality principles and regulation 122 of the Community Infrastructure Levy Regulations 2010. Alternatively, the authority may acquire the necessary land or rights under statutory acquisition powers and pay compensation.

5. Planning conditions have no special interpretative code. A reasonable reader considers the natural meaning of the words, the permission’s purpose, the other conditions, common sense, and relevant planning law and practice. Courts must exercise restraint before implying terms into public documents backed by criminal sanctions.

6. Condition 39 regulated the quality and timing of construction. It did not mention dedication, require the grant of public rights, or define the land supposedly to be dedicated. Its stated reason concerned adequate and safe access from the development to the public highway. Its wording and position among conditions addressing design and construction confirmed that it did not create public highway rights.

• United Kingdom Supreme Court: Dismissed Swindon Borough Council’s appeal and upheld the Court of Appeal’s restoration of the planning inspector’s certificate: [2022] UKSC 33.
• Court of Appeal: Unanimously allowed the developer’s appeal and upheld the inspector’s construction of condition 39: [2020] EWCA Civ 1331; [2021] PTSR 432.
• High Court: Andrews J quashed the inspector’s decision, holding that condition 39 required the construction of roads available for public use.
• Planning inspector: Allowed the developer’s appeal and certified that private use of the access roads was lawful.