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This appeal concerned the meaning of a condition that was attached to the grant of planning permission for a development site in 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. The appellant’s planning committee granted outline planning permission for the site subject to a number of conditions. Condition 39 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 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 respondent 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. The appellant, Swindon BC, refused to issue the certificate, asserting that condition 39 imposed an obligation on the owner of the site to dedicate the Access Roads as public highways. It was agreed between the parties that it would have been reasonable and lawful for Swindon BC to require that the Access Roads be dedicated as highways through the mechanism of a “planning obligation” (as distinct from a planning condition) under section 106 of the 1990 Act. However, the appellant argued that it could impose a planning condition to achieve the same result. The respondent disagreed, and further contended that condition 39 simply regulated the physical attributes of the Access Roads before the site was brought into use.

The Secretary of State’s Planning Inspector allowed the respondent’s appeal against Swindon’s refusal of the certificate. The High Court allowed Swindon’s application for a statutory review of the Inspector’s decision. The respondent then successfully appealed the judgment to the Court of Appeal, the decision of which Swindon BC now appeals.

 

HELD: The Supreme Court unanimously dismissed the appeal.

Issue 1: Is it 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 Supreme Court holds that the statutory provisions relating to planning conditions in the 1990 Act do not exist in a vacuum, but fall to be interpreted in the context of the Act as a whole, including the provisions relating to compulsory purchase and planning obligations.

The Supreme Court considers the judgment in Hall & Co Ltd v Shoreham-by-Sea Urban District Council[1964] 1 WLR 240, which considered the circumvention of the relevant compulsory purchase regime by a purported planning condition. Agreeing with the Court of Appeal, the Supreme Court holds that Hall is authority for the fact that a planning authority may not lawfully require a landowner by means of a planning condition to dedicate land as a public highway.

As to planning obligations, the Supreme Court notes that these are, generally, agreed between the planning authority and the owner of the land under section 106 of the 1990 Act, while a planning condition is imposed by the planning authority. It is common practice to include an obligation on the owner of the land to dedicate part of its land for public use in a section 106 agreement, though this was not done in this case. The power to impose planning conditions is not unlimited: (1) the conditions must be imposed for a planning purpose and not solely for an ulterior one; (2) they must fairly and reasonably relate to the permitted development; and (3) they must not be so unreasonable that no reasonable planning authority could have imposed them. Moreover, there is an established policy position as to the scope of planning conditions, which is consistent with case-law, that they should not require the cession of land for road improvements. The Supreme Court goes on to consider the limits on the use of planning obligations contained in case-law and legislation, holding that there is a fundamental conceptual difference between a unilaterally imposed planning condition and a planning obligation, to which the developer can be subjected only by its voluntary act. The Supreme Court holds that the options for a planning authority, which wants to require the dedication of roads within a development site as public highways, are to negotiate an agreement with the landowner or to exercise powers of compulsory acquisition.

Issue 2: Properly interpreted, does condition 39 have the purported effect of dedicating land within the development site to be a public highway?

Planning conditions are to be interpreted in a similar manner to other public documents: the court asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the planning consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.

The Supreme Court holds that condition 39 does not purport to require the dedication of the Access Roads as public highways. Instead, it addresses the quality and timing of the Access Roads’ construction. The Supreme Court reaches this judgment for a number of reasons, including the fact that condition 39 makes no mention of any requirement to dedicate the Access Roads as public highways; the fact that condition 39 is part of a list of conditions addressing the design, method of construction, and physical characteristics of the means of access to the site; and the wider planning law context, including Hall v Shoreham, the well-established guidance on the imposition of planning conditions, and planning authorities’ practice of securing the dedication of roads by means of a section 106 agreement. Condition 39 is, therefore, a valid planning condition which does not purport to require the dedication of the Access Roads as public highways.

 

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Watch hearing

12 July 2022    Morning session  Afternoon session