Category: Opinions | October 21, 2020
How to interpret planning conditions (DB Symmetry Ltd v Swindon Borough Council)
The question before the court was 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 the outline planning permission for the development requires the public to have rights of way, including in vehicles, over those access roads. All this depended on the construction of the planning permission. The Council was successful in the High Court which had challenged the planning inspector’s decision to allow an appeal against its refusal of a certificate of lawfulness of proposed use or development. However, at the Court of Appeal, DB Symmetry Ltd was successful as the Court upheld the planning inspector’s decision that the condition regulated the construction of the roads and did not require them to be dedicated as public highways.
What are the practical implications of this case?
This case provides a nice summary on the approach to interpreting planning conditions and to the lawfulness of planning conditions. The case has wide implications as a condition on a planning permission cannot as a matter of law require land to be dedicated as highway. Such a requirement needs to be included in a section 106 agreement/section 38 agreement. Even though this case was about a condition that required the dedication of land as highway, the same principle could apply to conditions requiring the dedication of open space.
The Court asked itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other planning conditions and of the planning permission 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 planning permission, any other conditions which cast light on the purpose of the relevant words, and common sense.
Like any other document, a planning permission must be interpreted in context. The context which includes the legal framework within which planning permissions are granted. The Court observed that, since the context includes the legal framework, the reasonable reader must be equipped with some knowledge of planning law and practice.
The Court also considered the validation principle in relation to the interpretation of planning permissions. This is the principle that, where the court is faced with a choice between two realistic interpretations, it will prefer an interpretation which results in the instrument being valid as opposed to void. This principle has been considered recently by the Supreme Court in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb  UKSC 38 and Tillman v Egon Zehnder Ltd  UKSC 32.
What was the background?
The Council granted outline planning permission in respect of a site DB Symmetry wanted to develop, which in part authorise the construction of a section of spine road envisaged eventually to connect through the wider development. This planning permission was subject to no less than 50 conditions, including condition 39 which read as follows: “Roads - 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.”
A section 106 agreement was also entered in between the parties. It included, amongst other things, covenants relating to construction of the spine road to base course level to the application site boundary in accordance with condition 39 of the planning permission. There was no collateral agreement pursuant to section 38 of the Highways Act 1980.
DB Symmetry Ltd took the position that condition 39 did not requite the dedication of the roads as public highway. DB Symmetry Ltd applied to the Council for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads as private access roads would be lawful. The Council refused the certificate and DB Symmetry Ltd appealed.
The Planning Inspectorate allowed DB Symmetry’s appeal. The planning inspector certified that the use of the access roads for private use only would be lawful.
The council then 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. The Council was successful at the High Court, which resulted in the decision of the planning inspector being quashed, and the certificate of lawfulness that she granted being set aside. DB Symmetry Ltd then appealed to the Court of Appeal.
What did the court decide?
The Court held that condition 39 regulated the construction of the roads and did not require DB Symmetry Ltd to dedicate these as public highways. The Court disagreed with the High Court.
The Court gave 10 reasons as to why the interpretation by the planning inspectorate was the correct one in relation to condition 39: (1) condition 39 does not expressly require dedication which is a necessary prerequisite of the creation of a highway. Nor does it refer to a grant of rights of passage; (2) It was not clear which parts of the development were to be dedicated as highways; (3) the drafter of the planning condition appeared to distinguish between a “highway" and a “public highway”; (4) the obligation related to conditions of the roads which are themselves access roads rather than highways; (5) the reason for imposing the condition states that it is imposed to ensure that “the development” (rather than individual units or other areas within the development) has “adequate means of access to the public highway”; (6) condition 38 suggests that the highway does not form part of the development; (7) the power to impose conditions on the grant of planning permission should not be interpreted as derogating from the rights of the owner to exercise his property rights, in the absence of clear words; (8) the planning permission as granted says nothing about repair of the roadways once constructed. Although it is legally possible to create a newly constructed highway which no one is liable to repair, in modern times that is unusual; (9) the reasonable reader would be disposed to understand that, in imposing conditions on the grant of planning permission, the local planning authority had complied with the law and government policy and would not suppose that the local authority intended to grant a planning permission subject to an invalid condition; and (10) a section 38 agreement nor a section 106 agreement were used to secure the adoption of a way as a highway.
The Court also said that, in deciding what the planning condition meant, it should give some weight to the expertise of an experienced and specialist planning inspector who had considered the meaning of the condition on appeal against the refusal of a certificate of lawful use.
The Court concluded that a condition attached to a planning permission could not lawfully require a developer to dedicate part of his land as a highway without compensation, in accordance with the case of Hall & Co Ltd v Shoreham by Sea Urban DC  1 WLR 240. The Court held that a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be unlawful. Hall & Co was regarded by the Court as imposing an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission.