DB Symmetry Ltd and another v Swindon Borough Council

The Supreme Court held that a planning condition cannot lawfully require a landowner to dedicate land as a public highway and thereby avoid the statutory compensation regime. The Court applied established principles limiting planning conditions (the Newbury tests and the principle in Hall v Shoreham) and concluded that such a condition would be ultra vires. The Court also construed the specific condition (condition 39) in the outline permission as addressing the standard and timing of construction of access roads rather than imposing any obligation to dedicate those roads as public highways.

This appeal concerned whether a local planning authority may, by way of a planning condition attached to a grant of planning permission, require the developer to dedicate roads formed within a development as public highways, and whether condition 39 of an outline permission in this case had that effect.

Background and parties: The site formed part of the proposed New Eastern Villages (NEV) strategic allocation. Swindon Borough Council (appellant) granted outline permission subject to multiple conditions including condition 39, which required access roads and related works to be constructed to basecourse level prior to occupation. The first respondent, DB Symmetry Ltd (DBSL), later sought a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads on the site as private roads would be lawful. The planning inspector allowed the certificate; Mrs Justice Andrews in the High Court quashed the inspector; the Court of Appeal ([2020] EWCA Civ 1331) allowed DB Symmetry’s appeal and reinstated the inspector’s decision, and Swindon BC appealed to the Supreme Court.

Nature of the claim / relief sought: (i) A challenge to the Court of Appeal’s approach to Hall v Shoreham and to the proposition that a planning condition cannot require dedication of land as a public highway without compensation. (ii) A challenge to the Court of Appeal’s construction of condition 39 (Swindon BC sought a declaration that condition 39 required dedication of the internal access roads as public highways; DBSL sought a certificate that private use would be lawful).

Issues framed by the Court:

• Whether it is lawful for a local planning authority to impose, by planning condition, an obligation to dedicate land as a public highway.
• Whether condition 39 of the outline permission required dedication of the access roads as public highways or merely regulated their construction and timing.

Court’s reasoning (concise): The Court examined statutory powers (sections 70 and 72 of the 1990 Act), the distinction between planning conditions and planning obligations (section 106), powers of acquisition and highways law (Highways Act 1980 provisions), and the relevant case law, in particular Hall v Shoreham. On the first issue the Court concluded that a planning condition that purports to require dedication of land as a public highway would be unlawful because it would circumvent statutory acquisition and compensation regimes and depart from long‑established limits on planning conditions. On the second issue the Court construed condition 39 objectively in context: it found no wording requiring dedication or grant of public rights and, reading the condition with adjacent conditions and the section 106 agreement, concluded it related to standards and timing of construction rather than to legal dedication of the roads. The Court therefore dismissed the appeal.

Wider context: The Court noted the established planning practice and statutory framework for securing highway dedication by section 106 agreements or by agreement under the Highways Act, and that Hall v Shoreham remains authoritative on the limits of planning conditions.

The appeal is dismissed. The Supreme Court held (1) as a general legal principle that a planning condition which purports to require a landowner to dedicate roads on a development site as public highways would be unlawful because it would circumvent statutory acquisition and compensation mechanisms and exceed the legitimate scope of planning conditions; and (2) on construction of the particular planning permission, condition 39 did not require dedication of the access roads as public highways but regulated the standard and timing of construction of access roads.

Planning inspector allowed DBSL's s192 certificate; Mrs Justice Andrews in the High Court quashed the inspector's decision (judgment dated 1 July 2019). The Court of Appeal allowed DBSL's appeal and reinstated the inspector ([2020] EWCA Civ 1331). Swindon Borough Council appealed to the Supreme Court ([2022] UKSC 33), which dismissed the appeal.