Thu, 22 Oct 2020
Richard Humphreys QC (instructed by Jones Day) represented DB Symmetry Ltd (the appellant).
The dispute was as to whether a planning condition required the developer to dedicate access roads as public highways or whether it merely regulated the physical attributes of the roads.
The Court of Appeal held, allowing the appeal from the decision of Andrews J. (as she then was), that where there are two realistic interpretations that can be given to a planning condition but one of them would render the condition invalid, the alternative interpretation should be given to the condition “even if it is not the most natural” interpretation (the validation principle).
In Hall & Co. Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 it had been held that it was ‘Wednesbury’ unreasonable for a council to impose a planning condition requiring the developer to give a right of passage without compensation over a road it was required to construct on its land.
In the present case, the Council argued that Hall turned on its own facts and did not establish any wider principle.
The Court of Appeal disagreed and held that Hall remains good law.
Andrews J. had been incorrect to consider that some doubt had been cast on the decision by Lord Hoffmann in Tesco Stores Ltd v. Secretary of State for the Environment (1995) 1 WLR 759 (whose speech had not in any event been the leading speech); and had misunderstood a Circular referred to by Lord Hoffmann.
Indeed the direction of travel in planning legislation since Hall has been to encourage a wider use of planning agreements, while leaving the scope of the power to impose conditions untouched.
Public law lawyers may be interested by the observation of Lewison L.J. that it did not matter whether the unlawfulness of the condition was characterised as being beyond the scope of the power under s.70(1) of the Town and Country Planning Act 1990 because it required the grant of rights over land rather than merely regulating the use of land; or whether it was a misuse of a power to achieve an objective that the power was not designed to secure; or whether it was ‘Wednesbury’ unreasonable/irrational in the public law sense; or whether it was disproportionate.
The Court recognised that Hall establishes a recognised principle which was binding on it.
Planning officers and consultants, as well as planning lawyers, may also be interested to note that Hall is consistent with the understanding of the law which has informed government policy continuously for 69 years - from Circular 58/51 to present-day NPPG advice.
