Joined up thinking

The Supreme Court has recently confirmed routes for linking development, writes Chris Robinson.

The Supreme Court decision in DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33 confirms that planning conditions cannot be used to require a landowner to dedicate land as public highway but that the same outcome may well be justified through other means. It is worth sweating the detail to understand where land values and development constraints sit in each case.

The Takeaways

  1. A local planning authority may not use a planning condition to require the dedication of a road as a public highway – it is legally perverse to do so in a way that subverts the landowner’s right to fair compensation.
  2. A Section 106 agreement or a CPO are the proper options.
  3. Refusal of permission in the absence of an agreement may well be entirely justified, depending on the facts.
  4. Remains paramount to ensure conditions are drafted clearly and unambiguously.

The Detail

The local authority approved a scheme as part of an allocated mixed use strategic allocation of 8,000 homes and other uses. It did so without any Section 106 or Section 38 dedication arrangements to secure provision of link routes as public highways. The authority refused to grant a certificate of lawfulness in relation to the private use of the access roads, relying on the interpretation of a lone planning condition as requiring public access: 

“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.” 

An Inspector disagreed – finding that the condition imposed “a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for the use by the general public.”

The Council succeeded in overturning the Certificate in the High Court but lost in the Court of Appeal (which unanimously upheld it). The Supreme Court considered the lawfulness of a condition that required dedication as a public highway (and whether in fact the condition in question did that).

No appropriation without compensation

In dismissing the Council’s appeal on this ground, Lord Hodge held that the principle established in Hall v Shoreham (i.e. that it was legally perverse for the local planning authority to impose a condition requiring the dedication of roads as a public highway as an alternative to compulsory purchase with compensation) remained good law and could be applied generally and was not case-specific. What is interesting about the analysis (paragraphs 39-50) is that a condition requiring dedication offended only 1 (the last) of the 3 principles on which Hall v Shoreham was decided: no fundamental alteration of legal rights, sufficient nexus to the proposals and legal perversity (blatant unreasonableness).

But be careful – few free rides in planning

Lord Hodge disagreed with the authority’s assertion that planning conditions and section 106 obligations were analogous and made clear that nothing in the judgment would be a bar to either a bilateral arrangement or a refusal of permission where merited

  • “There is a fundamental conceptual difference between a unilaterally imposed planning condition and a planning obligation: the developer can be subjected to a planning obligation only by its voluntary act, normally by entering into an agreement with the planning authority, and not by the unilateral act of the planning authority“. The agreement route provides significantly greater agency and control for the owner (paragraph 63).
  • Noting Lord Hoffmann in Tesco Stores Ltd: it did not follow that because, on the authority of Hall v Shoreham, a condition imposing an obligation to cede land or pay money would be regarded as Wednesbury unreasonable, the same would be true of a refusal of planning permission if a developer was unwilling to enter into a similar planning obligation (paragraph 59).
  • “There is no doubt that in this case, Swindon BC would have been wholly justified in terms of planning policy in requiring the owner of the site to dedicate the access roads within the site as a highway extending to the boundaries of the site to enable the public to have rights of access to and from the other proposed development sites in the NEV south of the A420.” (paragraph 76).

The judgment, therefore, serves to reinforce the importance of:

  1. Dialogue on planning needs and genuinely justified measures
  2. Policy support for requirements
  3. Mechanisms to secure access on sensible terms within planning agreements when permission is being granted.

Interpretation

The Supreme Court ultimately rejected the suggestion that the condition did cross the Shoreham v Hall line – applying the plain and common sense approach to interpretation in Trump. The reasoning (69-74) is helpful when looking at other conditions:

  1. The condition makes no mention of any requirement to dedicate the access roads as public highways and does not otherwise require the landowner to grant any public rights of way over those roads;
  2. The phrase “the proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose” gives no adequate guidance as to the extent of the land which it is asserted was to be dedicated as a public highway;
  3. The reason that the Council gives for the condition discloses that the purpose of the condition is that there are to be adequate means of access to the developed units in the interests of highway safety;
  4. The reason given for the condition draws a distinction between the access roads and the public highway as the access roads etc are to provide “adequate means of access to the public highway”;
  5. The condition is located in the list of conditions in a context in which the planning authority is predominantly addressing the design, method of construction, and physical characteristics of the means of access; and
  6. The wider context of the legal framework of planning law, the well-established government guidance on the imposition of planning conditions, and the practice of local planning authorities of securing the dedication of roads by means of a section 106 agreement would strongly suggest that the Council did not seek to impose a requirement of the dedication of the access roads etc as public highways in condition 39.

Chris Robinson is a senior associate in Dentons' Planning and Public Law team. This article first appeared in the firm’s Planning blog.