Cautionary tale - The Use of Planning Conditions vs Planning Obligations

DB Symmetry Limited v Swindon Borough Council [2020] EWCA Civ 1331

The Court of Appeal has recently allowed an appeal by a Developer regarding the interpretation of a planning condition. The issue was whether a planning condition can lawfully require a developer to dedicate roads which were to be constructed as part of the development for public purposes.

The Court of Appeal held that there was a difference between what can be achieved by way of a planning condition and what can be achieved by planning agreements.   A condition which required a developer to dedicate land which he owns as a public highway without compensation is an unlawful condition.

Background

• Swindon Council granted DB Symmetry, a developer, outline planning permission to develop part of the "New Eastern Villages". The outline planning permission was subject to 50 conditions, including condition 39 which was the subject of the appeal:

“Roads 

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." 

Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety.”

• The dispute centred on the meaning of this condition. Swindon argued that the condition required DB Symmetry to dedicate the roads as public highways. Whereas DB Symmetry considered it as a guide on how to construct the roads rather than a direction as to their legal status.
• DB Symmetry proceeded to apply for certificate of lawfulness regarding the formation and use of the private access roads. Swindon refused the application. On appeal, a planning inspector certified that the use of the access roads for private use was lawful and agreed with DB Symmetry that condition 39 did not require the roads to be dedicated for public use.
• Swindon successfully appealed this decision in the High Court, where the judge held that the planning permission envisaged that the access roads were highways over which the public would have rights of access.
• DB Symmetry appealed to the Court of Appeal.

Court of Appeal Decision

The Court allowed the appeal and found that the reference to "highway" in condition 39 reasonably meant a "road".  The Court made clear that conditions should not be used to limit an owner from exercising their own property rights and that a condition which required developers to construct roads and dedicate the land as a public highway is unlawful.  There is a legal process which needs to be followed to dedicate land and the correct statutory mechanism is by way of a planning agreement.

Salutary tale for Developers and Local Authorities 

This is a reminder to developers and local authorities concerning what can be achieved by way of a planning condition versus a planning agreement.  It is not lawful to use planning conditions to remove property rights and/or require developers to dedicate land.  Local authorities should take extra care when drafting conditions and ensure that the correct statutory mechanism is used.  Finally, Developers should raise any concerns with inappropriate/unlawful conditions at the earliest opportunity to avoid future lengthy legal arguments on the interpretation of a planning condition.