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Council wins High Court battle over development and certificate of lawfulness

A borough council has won a High Court challenge over a planning inspector’s decision to allow an appeal against the local authority’s refusal of a certificate of lawfulness of proposed use or development.

The case of Swindon Borough Council v Secretary of State for Housing Communities and Local Government & Anor [2019] EWHC 1677 (Admin) related to land at Symmetry Park, South Marston, Swindon and access roads to a development.

The council made an application for planning statutory review under s.288 of the Town and Country Planning Act 1990 over the decision of the planning inspector on 6 November 2018.

Mrs Justice Andrews said the question whether a certificate of lawfulness should or should not have been granted in this particular case turned on the question whether the access roads within the development could only be used by members of the public with the permission of the site owners or management company, or whether, as the council contended, the outline planning permission for the development requires the public to have rights of way, including in vehicles, over those access roads.

That, in turn, depended on the construction of the planning permission, she said.

Mrs Justice Andrews said Condition 39 of the outline planning permission was at the heart of the dispute. This 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." [Judge’s emphasis]

Finding in favour of Swindon, Mrs Justice Andrews said: “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 continued: “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.

“The s.106 agreement, which includes an obligation on the owners to construct the access roads to the site boundaries in accordance with condition 39, is entirely consistent with this interpretation.”

For those reasons, the council's claim succeeded, she said. As a result the decision of the planning inspector was quashed, and the certificate of lawfulness that she granted was set aside.

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