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Developer wins Court of Appeal battle with council over planning condition and status of access roads

A planning inspector can interpret a planning consent in a realistic way “even if it is not the most natural”, the Court of Appeal has found.

In DB Symmetry Ltd v Swindon Borough Council & Anor [2020] the court decided an inspector had been right to conclude that a planning consent issued by Swindon Borough Council to DB Symmetry did not require the public to have rights of passage over roads that form part of the development.

Lewison LJ said DB Symmetry’s application was the first to be determined in an overall development called New Eastern Villages, which included about 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses.

Consent was granted with numerous conditions, one of which stated: “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.”

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A dispute arose between Swindon and DB Symmetry over whether that condition required it to dedicate the roads as public highways or merely regulated their physical attributes.

The developer applied to Swindon for a certificate under section 192 of the Town and Country Planning Act 1990 that their formation and use as private access roads would be lawful.

Swindon refused and the developer appealed, which planning inspector Wendy McKay allowed and certified that the use of the access roads for private use only would be lawful.

That decision was then overturned in the High Court by Andrews J and DB Symmetry appealed.

Lewison LJ said: “I do not think that [Andrews J] really appreciated the consequences of her decision.

“In my judgment, if the judge was right in her interpretation of the condition, the condition (and probably the whole planning permission) is invalid.

“In those circumstances, the validation principle comes into play. The question, then, is whether the inspector's interpretation of condition 39 was realistic (even if not the most obvious or natural one).”

The court had to decide what a reasonable reader would understand the words to mean in the context of the other conditions and of the consent as a whole, which was an objective exercise concerning the ordinary meaning of the relevant words.

He concluded: “The interpretation adopted by the inspector is, to put it no higher, a realistic one even if it is not the most natural. The validation principle therefore applies; and condition 39 should be given the meaning that she ascribed to it.”

Mark Smulian

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