DB Symmetry Ltd and another v Swindon Borough Council [2022] UKSC 33

1. Introduction

The Supreme Court gave judgment on 14 December 2022 in the case of DB Symmetry Ltd and another v Swindon Borough Council [2022] UKSC 33. A link to the judgment is here: DB Symmetry Ltd and another (Respondents) v Swindon Borough Council (Appellant) (supremecourt.uk)

The judgment of the Court was given by Lord Hodge with whom the other justices agreed. 

The case concerned a condition attached to an outline planning permission that read as follows:

“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 principal issues for the Court were the vires and correct interpretation of the condition. 

2. The arguments

Swindon BC argued that the condition should be interpreted as meaning that there was a requirement on the developer to dedicate the access roads as highways maintainable at public expense; the developer contended that the condition simply regulated the physical attributes of the access roads. 

The Supreme Court was required to determine two principal issues; firstly whether a condition could lawfully be imposed on a planning permission that required a landowner to dedicate its land as public highway; and secondly what the condition in dispute in this case meant when properly interpreted. 

There was no dispute that Swindon BC could have required the developer to enter into a s.106 Town and Country Planning Act 1990 agreement to require dedication of the access roads as public highway, although it had not done so. Compulsory purchase powers were also available that could have achieved an outcome where the access roads became public highway subject to the payment of compensation, again this route had not been considered. 

3. The judgment

The salient paragraphs of the judgment are as follows:   

“In conclusion on the first issue, therefore, I would hold that a planning condition which purports to require a landowner to dedicate roads on its development site as public highways would be unlawful. I reach this conclusion without regret as to hold otherwise would be to undermine a foundational rule of the planning system on which people have relied for decades and create uncertainty where there should be certainty.” (para 65)

“In my view the condition does not purport to require the dedication of the access roads as a public highway. Instead, it addresses the quality and timing of the construction of those roads and other access facilities.” (para 68)

“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. It could have done so by means of a section 106 agreement, but for reasons unknown it did not do so. Its attempt after the event to rely on condition 39 fails for two reasons. First, it would have been ultra vires to require the dedication of the access roads as a highway by means of a planning condition. Secondly, on a proper construction condition 39 did not purport to do so.” (para 76)

4. Analysis

Again this year, we have a judgment of the Supreme Court confirming our previous understanding of a tenet of planning law, in this case the principle established long ago in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240. The case remains good law and confirms that planning conditions cannot be used to require a landowner to dedicate land as public highway and that any condition which purports to do so is ultra vires. The Court also determined that in this case the condition in question was a valid planning condition that did not purport to require the dedication of the access roads as public highway. 

The interpretation of the planning condition in question is interesting, not because of the outcome (which is wholly logical), but because of the 6 reasons given by the judge for his interpretation. The approach to interpretation applied a common sense approach to the ordinary meaning of the words, considered the legal and planning policy guidance context in which the condition was imposed, and most interestingly, where in the planning permission the condition was located.  

1. “The condition makes no mention of any requirement to dedicate the access roads as public highway and does not otherwise require the landowner to grant any public rights of way over those roads.” (para 69)
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. (para 70)
3. “The reason which Swindon BC 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. It addresses the need for the access roads to be constructed before the development is occupied. It does not seek to ensure that there is a public highway through the site.” (para 71)
4. “While the condition speaks of a fully functional highway 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”. (para 72)
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.” (para 73)
6. “The wider context of the legal framework of planning law, including the landmark case of Hall v Shoreham, 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 to the reader that Swindon BC did not seek to impose a requirement of the dedication of the access roads etc as public highways in this condition which, as I have said, makes no mention of such dedication.” (para 74)

The conclusion for developers and local authorities must be carry on as you were; if it is important that new roads within a development become adopted highway then this requirement must be secured by a s.106 agreement (or other form of legal agreement), although it would be usual for a condition to also be imposed on a planning permission that included a trigger for when “highway works” need to be completed by, for example pre-occupation. A reference to “highway works”, or undertaking works to “an adoptable standard” in a condition will not ordinarily be interpreted as a requirement for a developer to dedicate land as a highway, or publicly maintainable highway (so making the condition ultra vires), provided the context of the condition is clear.