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In DB Symmetry Limited v Swindon Borough Council 2020 the court was asked to consider what was meant by the following condition attached to a planning permission granted for a substantial housing estate:
“The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use”
The developer (as Appellant before the Court) argued it meant that the estate roads serving their development did not have to be adopted, and that the purpose of the condition was to regulate the physical attributes of those estate roads.
The Council (defending their successful high court decision) believed it required that the roads be dedicated by the developer as public highways.
The dispute eventually came before the court via the following route. The developer had applied to the Council for a certificate of lawfulness, asking the Council to confirm its interpretation of the condition, that the estate roads need not be adopted. The Council refused that application and the developer appealed to the Secretary of State. The Inspector at the appeal sided with the developer and the Council successfully challenged the Inspector’s decision in the high court. It is that judgment that was appealed to the Court of Appeal.
The Court of Appeal sided with the Inspector’s interpretation of the condition, confirming that a planning condition cannot lawfully require land to be dedication as public highway without compensation. A condition such as that tries to impose a dedication requirement on a private individual, and for that reason it is invalid and unenforceable. This flows from the long established principle that a condition may not destroy private proprietary rights such as would occur were a person forced through a condition to dedicate their land a public highway.
If in the determination of a planning condition a Council concludes that a new development necessitates the creation of public highway then the appropriate mechanism for securing this is through a section 106 planning obligation and/or a section 38 highways agreement. There is no place for the dedication of roads through conditions.
In reaching this conclusion the court restated the objective tests to be applied in the interpretation of a planning condition.
The reliance on the validation principle is interesting in that it derives from contract law interpretation and proceeds on the premise that the parties intended the contract to be valid. This is despite planning conditions differing from contracts in that they are imposed by the Council, rather negotiated in the sense that a contract is.
A final point of caution to remember when embarking on a challenge to a condition. If, despite the validation principle, the court cannot find a lawful interpretation of a condition it will sever that condition from the permission which might cause the permission itself to be quashed. Such an outcome may not be the one the parties are hoping for.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
26 October 2020