Wed, 14 Dec 2022
No5's Richard Humphreys KC has successfully acted for DB Symmetry Ltd in the case 'DB Symmetry Ltd and another (Respondents) v. Swindon Borough Council (Appellant)  UKSC 33'. The Supreme Court held that it is not lawful for a planning authority, when granting planning permission for a development, to impose a condition requiring the developer to grant public rights of way over land within the development site. Below is a summary of the outcomes from the case;
- The Supreme Court (judgment given by Lord Hodge), in dismissing the Borough Council’s appeal, held that it is not lawful for a planning authority, when granting planning permission for a development, to impose a condition requiring the developer to grant public rights of way over land within the development site; further, however, that the particular condition in question, properly construed, did not so require and was concerned only with the standards of construction of the access roads and the timing of their construction. The Inspector’s decision to grant a certificate of lawfulness of proposed use in respect of the formation and use of access roads in the site as private access roads was therefore correct.
- Outline planning permission had been granted for employment development and a new junction to the A420. The site was part of the proposed New Eastern villages to the north-east of Swindon, comprising some 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses.
- It was clear from the Illustrative Landscape Masterplan referred to in the conditions that it was envisaged that there would be road connections between the site and other development sites within the New Eastern Villages, enabling the other development sites to connect with the wider road network.
- The Court considered the scope of the statutory power to grant conditions and caselaw dating back to the decision of the Court of Appeal in Pyx Granite Co Ltd v. Ministry of Housing and Local Government  1QB 534 where Lord Denning stated that planning conditions must both fairly and reasonably relate to the permitted development and not be imposed for an ulterior purpose. That statement was approved by the House of Lords in Fawcett Properties Ltd v. Buckingham County Council  AC 636, and in Mixnam’s Properties Ltd v. Chertsey Urban District Council  AC 735 where Lord Reid supported the view that general words and phrases, however wide and comprehensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act.
- The Court considered in detail the decision of the Court of Appeal in Hall and Co Ltd v. Shoreham by Sea Urban District Council  1 WLR 240. Willmer LJ in that case had concluded that the requirement to construct an ancillary road and to give right of passage over it to adjoining land (virtually to dedicate it) was so unreasonable as to be ultra vires, bearing in mind that the Council could have acquired the land for the ancillary road by compulsory purchase on payment of compensation. Willmer LJ referred to the dictum of Lord Warrington in Colonial Sugar Refining Co Ltd v. Melbourne Harbour Trust Commissioners  AC 343 that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous words (or, as Lord Reid later qualified that statement in Westminster Bank v. Beverley Borough Council
 AC 508, by irresistible inference from the statute read as a whole).
- The Court concluded that Hall was indeed authority, by analogy, for the proposition that a local planning authority cannot use a planning condition to require a landowner to dedicate land as a public highway.
- Moreover, absent a power to impose such a condition, the principle that public authorities may use powers which do not involve the payment of compensation in preference to those which do was not applicable.
- The tests for the validity of planning conditions had been set out in Newbury District Council v. Secretary of State for the Environment  AC 578: (1) they must be imposed for a planning purpose and not for an ulterior one: this derived from Pyx Granite and arose from the statutory context of the section; (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: Hall
had been cited as an example.
- Lord Hoffmann in Tesco Stores Ltd v. Secretary of State for the Environment  1 WLR 759 had described Hall as a landmark case which had exercised a decisive influence upon the development of British planning law and practice.
- Hall was moreover consistent with government guidance dating back to Circular No58/51 (“The Drafting of Planning Permissions”) issued in 1951: “it is a general principle that no payment of money or other consideration can be required when granting a statutory consent except where there is specific authority. Conditions requiring, for example, the cession of land for road improvements or for open space should not therefore be attached to planning permissions. …”.
- The Court noted that government policy on the scope of planning conditions has remained substantially the same in relation to the payment of money and the dedication of roads as public highways. Whilst such statements of policy were not of course legally binding, they demonstrated an established understanding as to the scope of planning conditions.
- It was not disputed that the Council could have achieved the dedication of the access roads as highways by means, inter alia, of a planning obligation under section 106 of
the 1990 Act; moreover the Court accepted “as correct the parties’ understanding in that regard”.
- The Court considered the use of planning obligations. The law (and government policy) rejected the buying and selling of planning permissions and sought to avoid this by requiring the first and third Newbury tests to be satisfied and by circumscribing the relevance of a planning obligation as a material consideration in the determination of a planning application. Thus, an offered planning obligation which has nothing to do with a proposed development cannot be a material consideration: Tesco (supra), Elsick Development Co Ltd v. Aberdeen City and Shire Strategic Development Planning Authority  UKSC 66 and R (Wright) v Forest of Dean Council  UKSC 52.
- In Wright, a planning condition had required an annual payment of a community donation out of the turnover of the permitted wind turbine: it was held that the community benefits did not have a planning purpose and were not therefore material. Lord Hodge expressed the view that it would have made no difference if the developer had included the offer in a planning obligation. It would also not meet the requirements of regulation 122 of the Community Infrastructure Levy Regulations.
- There was a fundamental conceptual difference between a unilaterally-imposed planning condition and a planning obligation entered into by a voluntary act.
- Finally, the Court referred to the dissenting judgment of Browne-Wilkinson LJ in Wheeler v. Leicester City Council  1 AC 1054: Parliament could legislate to interfere with freedoms but it could not be taken to have conferred such a right on others save by express words. There was no need to consider Article 1 of Protocol No 1 of the European Convention on Human Rights.
A link to the judgment can be found here.