The Court of Appeal has handed down judgment in the case of DB Symmetry v Swindon BC [2020] EWCA Civ 1331, allowing the appeal made by the developer and supported by the Secretary of State for Housing, Communities and Local Government.  The case deals with the approach to the interpretation of planning conditions and the lawfulness of conditions purporting to require the public to have rights of passage over roads to be constructed as part of a development.

The Court of Appeal summarised the dispute between the parties as whether the relevant condition required the developer to dedicate the roads as public highways (as Swindon BC contended) or whether it merely regulated the physical attributes of the roads (as the developer, supported by the Secretary of State, contended).  

The judgment records that, when interpreting planning conditions, the court should ask itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the 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 consent, any other conditions which cast light on the purpose of the relevant words, and common sense.  

The Court adopted the approach that, like any other document, a planning permission must be interpreted in 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 took the view that 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.  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 of Appeal also considered the validity or 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 [2020] UKSC 38 and Tillman v Egon Zehnder Ltd [2019] UKSC 32.  

The Court of Appeal 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 [1964] 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.  The Court observed that it was clear that the power to impose conditions on the grant of planning permission is narrower than the power to enter into planning agreements or to accept planning obligations.  

Overall, the Court of Appeal upheld the inspector’s decision that the condition regulated the construction of the roads and did not require them to be dedicated as public highways.  

Richard Honey and Charles Streeten appeared for the Secretary of State in the Court of Appeal, instructed by the Government Legal Department.  

The judgment can be found here.