The Supreme Court has given Swindon Borough Council permission to appeal in a case about whether a planning condition can require the dedication of a highway.
Condition 39 was the condition on which the appeal in DB Symmetry Ltd v Swindon Borough Council & Anor  EWCA Civ 1331 turned. It 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.
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 dispute between the parties was whether that condition required the developer to dedicate the roads as public highways (as the local authority contended) or whether it merely regulated the physical attributes of the roads (as the developer, supported by the Secretary of State) contended).
The planning inspector had found for the developer in its appeal against Swindon’s refusal of a certificate of lawfulness of proposed use or development, but Mrs Justice Andrews found for the council in Swindon Borough Council v Secretary of State for Housing Communities and Local Government & Anor  EWHC 1677 (Admin).
Allowing DB Symmetry’s 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.
“Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall [Hall & Co Ltd v Shoreham by Sea Urban DC  1 WLR 240] establishes a recognised principle which is binding on this court.”
Lewison LJ said he did 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,” he said.
“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.”
Richard Harwood QC and Victoria Hutton of 39 Essex Chambers are acting for Swindon Council.