Use of planning conditions to secure highway dedication
A recent Court of Appeal judgment (DB Symmetry Limited v Swindon Borough Council  EWCA Civ 1331) provides important guidance to local planning authorities and developers on the interpretation of planning conditions.
The case centred on a planning consent granted by Swindon Borough Council for an employment development. One of the conditions (Condition 39) attached to planning permissions required:
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 principal dispute was whether Condition 39 required the access roads to be dedicated as a public highway. The developer, DB Symmetry applied for a certificate of lawful use on the basis that the use of the access roads as private access roads would be lawful. The Council refused this application. The Council considered that Condition 39 required the dedication of the roads as highway. The Council's refusal was overturned on appeal, where the appeal inspector decided that Condition 39 imposed a requirement that the access roads must be capable of functioning as a highway along which traffic could pass whether private or public, but did not require them to be made available for use by the general public. The Council then applied for judicial review of the Secretary of State's decision.
The Court of Appeal upheld the appeal inspector's interpretation of Condition 39. This was because Condition 39 did not expressly state that the access roads must be dedicated, nor did it grant rights of passage. The term "access roads" was also ambiguous: how is an access road distinguished from other kinds of roads? The Court of Appeal also noted that if dedication of the roads was the intention of the Council there are far clearer and more regular methods for doing this (via section 106 obligations and an agreement under section 38 of the Highways Act 1980).
The case provides useful guidance on interpretation of planning permissions in the context of conditions that could have the effect of harming a person's property rights (in this case giving up part of the property as highway). In such a situation there must be clear evidence that the condition was intended to require the dedication of land, which did not exist on these facts. Where a court is faced with two realistic interpretations of a planning permission (as here), it would prefer an interpretation that resulted in the condition being valid as opposed to void. The Court of Appeal stated that if Condition 39 was found to require dedication of land this would have resulted in the planning permission being quashed, because a condition of that kind would be unlawful, and so it interpreted the condition as not requiring dedication.
The Court of Appeal reaffirmed that the imposition of a planning condition requiring a party to dedicate land as public highway is unreasonable and therefore unlawful, due to the lack of compensation payable for the land. This should be contrasted with the ability of public bodies to use compulsory purchase powers to acquire land for highway improvements, resulting in a right to compensation. The Court of Appeal also noted that the power to impose conditions was more restrictive than the power to enter into planning obligations under section 106 of the Town and Country Planning Act 1990.
Before concluding planning conditions local authorities and developers should be clear on:
- the precise intention behind condition;
- whether the wording of the condition reflects that intention; and
- whether there are alternative or more suitable ways of achieving that intention.
If in doubt, it is always worth getting legal advice on bespoke conditions to mitigate the risk of future disputes.