Supreme Court to rule next week on council public highway planning condition

The Supreme Court will next week (14 December) hand down its ruling in a case concerning whether it is lawful for a planning authority, in granting planning permission for a development, to impose a planning condition that the developer will dedicate land within the development site to be a public highway.

The dispute in DB Symmetry Ltd and another (Respondents) v Swindon Borough Council (Appellant) (UKSC 2020/0202) [2022] UKSC 33 arose after the local authority set conditions for a pair of private-access roads the developer, DB Symmetry, wished to build on its site on the outskirts of Swindon.

The proposed development included two roads, a "North-South access road", which ran southward from a new junction with the A420 and continued to the southern boundary of the site, and an "East-West spine road", which ran to the eastern boundary of the site from a roundabout on the North-South access road.

Swindon Borough Council's planning committee granted outline planning permission for the site subject to a number of conditions.

Condition 39, which is at the heart of the dispute, provided that: "The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a matter 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 developer subsequently applied for a certificate under section 192 of the Town and County Planning Act 1990 to confirm that the formation and use of private access roads within the development would be lawful. However, the local authority refused to issue the certificate. 

DB Symmetry then successfully appealed the council's refusal to the Planning Inspector.

But in Swindon Borough Council v Secretary of State for Housing Communities and Local Government & Anor [2019] EWHC 1677 (Admin), Mrs Justice Andrews DBE allowed Swindon's statutory review of the Inspector's decision, concluding that: "Condition 39 is designed to ensure that the envisaged means of access to, from and over the site linking the A420, in particular, and other exterior roads to the wider NEV is of an adequate standard, and what the council has required the developer to provide in this context are highways, i.e. public roads, that are fully functional for public use because they have been constructed to the specified standard prior to occupation and first use of the units which they will serve within the site. The word 'highway' in the condition would be understood by the informed reader to bear its usual meaning. That is what the access roads were intended to be. It is not being used in this context either as a synonym for 'road' or to describe the part of a road used by vehicles rather than pedestrians."

The judge added: "This condition does not introduce the requirement to grant a public right of way over the access roads by surreptitious means; the fact that the access roads are intended to be public roads is plain on the face of the permission read as a whole. Even if there was no express discussion of that topic with the council, that much should have been obvious to the landowners and the developer from the outset."

DB Symmetry went on to appeal the judgment to the Court of Appeal. Allowing the appeal, Lord Justice Lewison said: "I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition."

Lewison J added that he did not think that Andrews J "really appreciated the consequences of her decision". 

Swindon then appealed to the Supreme Court.

The council's case was heard by a panel comprised of Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales, and Lady Rose on 12 July 2022.

Adam Carey