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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DB Symmetry Ltd v Swindon Borough Council & Anor [2020] EWCA Civ 1331 (16 October 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/1331.html Cite as: [2021] PTSR 432, [2020] EWCA Civ 1331 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
PLANNING COURT
MRS JUSTICE ANDREWS DBE
CO/5012/2018
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ARNOLD
and
LORD JUSTICE NUGEE
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DB SYMMETRY LIMITED |
Appellant |
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- and - |
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SWINDON BOROUGH COUNCIL |
First Respondent | |
- and - |
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SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT | Second Respondent |
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MR RICHARD HARWOOD QC (instructed by Swindon Legal Department) for the First Respondent
MR RICHARD HONEY & MR CHARLES STREETEN (instructed by the Government Legal Department) for the Second Respondent
Hearing dates : 7th and 8th October 2020
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Crown Copyright ©
Lord Justice Lewison:
Introduction
The facts
"Outline application for employment development including B1b (research and development/light industrial), B1c (light industrial), B2 (general industrial) and B8 (warehouse and distribution), new landscaping and junction to A420 (means of access not reserved)".
"to ensure that the arrangement of employment uses on site is acceptable and allows for north/south and east/west highway linkages to site boundaries in the interests of the proper and comprehensive planning of the wider New Eastern Villages Development Area".
"The proposed estate roads, footways, footpaths, verges, junctions, street lighting,… service routes…vehicle overhang margins,…accesses, carriageway gradients, driveway gradients, car parking and street furniture shall be constructed and laid out in accordance with details to be submitted and approved by the Local Planning Authority in writing before their construction begins. For this purpose, plans and sections, indicating as appropriate, the design, layout, levels, gradients, materials and method of construction shall be submitted to the Local Planning Authority.
Reason: to ensure that the roads are laid out and constructed in a satisfactory manner."
"The proposed footways/footpaths shall be constructed in such a manner as to ensure that each unit, before it is occupied or brought into use, shall be served by a properly consolidated and surfaced footway/footpath to at least wearing course level between the development and highway.
Reason: to ensure that the development is served by an adequate means of access."
"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."
Highways
i) highways repairable at the public expense;
ii) highways repairable by private individuals or corporate bodies; and
iii) highways which no one is liable to repair.
"A local highway authority may agree with any person to undertake the maintenance of a way—
(a) which that person is willing and has the necessary power to dedicate as a highway, or
(b) which is to be constructed by that person, or by a highway authority on his behalf, and which he proposes to dedicate as a highway;
and where an agreement is made under this subsection the way to which the agreement relates shall, on such date as may be specified in the agreement, become for the purposes of this Act a highway maintainable at the public expense."
"(1) A highway authority may, if they are satisfied it will be of benefit to the public, enter into an agreement with any person—
(a) for the execution by the authority of any works which the authority are or may be authorised to execute, or
(b) for the execution by the authority of such works incorporating particular modifications additions or features, or at a particular time or in a particular manner,
on terms that that person pays the whole or such part of the cost of the works as may be specified in or determined in accordance with the agreement."
Lawfulness of planning conditions
"(1) Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section—
(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission…".
"(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section … as "a planning obligation"), enforceable to the extent mentioned in subsection (3)—
(a) restricting the development or use of the land in any specified way;(b) requiring specified operations or activities to be carried out in, on, under or over the land;(c) requiring the land to be used in any specified way; or(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically."
"the conditions imposed must be for a planning purpose and not for any ulterior one, and … they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them."
"It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right of passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs' fundamental rights of ownership which goes far beyond anything authorised by the statute."
"The defendants would thus obtain the benefit of having the road constructed for them at the plaintiffs' expense, on the plaintiffs' land, and without the necessity for paying any compensation in respect thereof.
Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended."
"It is not in my judgment within the authority's powers to oblige the planner to dedicate part of his land as a highway open to the public at large without compensation, and this is the other possible interpretation of the condition. As was pointed out to us in argument, the Highways Acts provide the local authority with the means of acquiring lands for the purpose of highways, but that involves compensation of the person whose land is taken, and also the consent of the Minister."
"I agree with Willmer LJ that condition 3 is ultra vires because it is "unreasonable" in the sense which has been explained in Kruse v Johnson and other cases. I should, however, be inclined to say that the element of ultra vires is to be found in the conflict with the general law relating to highways. The general words of section 14 (1) of the Town and Country Planning Act, 1947, should not be interpreted as authorising a radical departure from the general law relating to highways."
"A condition will be invalid if its effect is to destroy private proprietary rights, such as to require the construction of an ancillary road on the application site and to make it available for use by owners of adjoining properties, effectively requiring its dedication as a highway without compensation …"
"That condition, as specified by the Secretary of State in his decision letter, is, in my view, undoubtedly one which is invalid and unenforceable. It was requiring as a condition of planning permission the providing to the public of 40 acres of land. It falls, in my view, four square within the situation considered in Hall & Co Ltd v Shoreham-By-Sea Urban District Council."
"… the Circular sanctions the use of planning obligations to require developers to cede land, make payments or undertake other obligations which are bona fide for the purpose of meeting or contributing to the external costs of the development. In other words, it authorises the use of planning obligations in a way which the court in Hall & Co Ltd v Shoreham-by-Sea Urban District Council … would have regarded as Wednesbury unreasonable in a condition." (Emphasis added).
"Parliament has therefore encouraged local planning authorities to enter into agreements by which developers will pay for infrastructure and other facilities which would otherwise have to be provided at the public expense. These policies reflect a shift in Government attitudes to the respective responsibilities of the public and private sectors. While rejecting the politics of using planning control to extract benefits for the community at large, the Government has accepted the view that market forces are distorted if commercial developments are not required to bear their own external costs." (Emphasis added).
"It does not follow that because a condition imposing a certain obligation (such as to cede land or pay money) would be regarded as Wednesbury unreasonable, the same would be true of a refusal of planning permission on the ground that the developer was unwilling to undertake a similar obligation under section 106. I say this because the test of Wednesbury unreasonableness applied in Hall & Co Ltd v Shoreham-by-Sea Urban District Council to conditions is quite inconsistent with the modern practice in relation to planning obligations which has been encouraged by the Secretary of State in Circular 16/91 and by Parliament in the new section 106 of the Town and Country Planning Act 1990 and the new section 278 of the Highways Act 1980 and approved by the Court of Appeal in Reg v South Northamptonshire District Council, Ex parte Crest Homes Plc."
"However it is quite clear from the tenor of Lord Hoffmann's speech that he did not subscribe to the view that in principle it would be Wednesbury unreasonable in the modern era for a local authority to require the developer to bear some of the external costs of the development, whether by way of condition or by imposing a planning obligation under s.106."
Government policy
"Conditions requiring for example, the cession of land for road improvement or for open space should not therefore be attached to planning permissions."
"Conditions cannot require that land is formally given up (or ceded) to other parties, such as the Highway Authority."
"In his speech, Lord Hoffmann described Hall v Shoreham as having exercised a decisive influence upon the development of British planning law and practice. He referred to the circulars issued by the Ministry of Housing and Local Government for the guidance of local planning authorities in the wake of that decision, quoting from what was then the most recent. I note in passing that that circular included the statement that "conditions may in some cases reasonably be imposed to oblige developers to carry out works, e.g. provision of an access road, which are directly designed to facilitate the development". Thus, Hall v Shoreham was (rightly) not regarded as giving rise to an absolute ban on imposing such obligations. The question whether a condition which is imposed for a planning purpose and relates to the development is Wednesbury unreasonable is fact specific."
The interpretation of a planning permission
"In summary, whatever the legal character of the document in question, the starting point—and usually the end point—is to find "the natural and ordinary meaning" of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense."
"… the validity principle proceeds on the premise that the parties to a contract or other instrument will have intended it to be valid. It therefore provides that, in circumstances in which a clause in their contract is (at this stage to use a word intended only in a general sense) capable of having two meanings, one which would result in its being void and the other which would result in its being valid, the latter should be preferred."
"To require a measure of equal plausibility of the rival meanings is to make unnecessary demands on the court and to set access to the principle too narrowly; but, on the other hand, to apply it whenever an element of ambiguity exists is to countenance too great a departure from the otherwise probable meaning."
"In Great Estates Group Ltd v Digby … Toulson LJ explained that, if the contract was "capable" of being read in two ways, the meaning which would result in validity might be upheld "even if it is the less natural construction". And in Tindall Cobham 1 Ltd v Adda Hotels … Patten LJ, with whom the other members of the court agreed, observed at para 32 that the search was for a "realistic" alternative construction which might engage the principle. In my view Megarry J, Toulson LJ and Patten LJ were identifying the point at which the principle is engaged in much the same place. Let us work with Patten LJ's adjective: let us require the alternative construction to be realistic."
Is there a realistic interpretation of condition 39 which does not result in unlawfulness?
"Whilst the term "highway" usually means a road over which the general public have the right to pass and repass, the phrase "fully functional highway" cannot be divorced from the beginning of the sub-clause which states "shall be constructed in such a manner as to ensure…". In my view, Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public. I believe that a reasonable reader would adopt the Appellant's understanding of the term "highway" as used in the context of the condition with the clear reference to the construction of the roads as opposed to their use or legal status. The distinct inclusion of the term "public highway" in the reason for imposing Condition 39 reinforces my view on that point."
"Looked at in isolation, it is possible to construe condition 39 in the manner for which [the Secretary of State] contends. It is headed "roads" and it appears in juxtaposition to a condition headed "foot/cycleways", thus it is possible to infer that it is dealing with the matters that are not covered by that previous condition, i.e. vehicular access to and within the site. Conditions in a planning permission are not interpreted like statutes, so, whilst it would be slightly odd, it is not impossible for the words "road" and "highway" to be used to mean the same thing in the same condition. However, condition 39 cannot be read in isolation, and when looked at in context of the overall permission, that is not how the reasonable informed reader would construe it."
Result
Lord Justice Arnold:
Lord Justice Nugee: