The Supreme Court has handed down judgment in the case of Swindon BC v DB Symmetry & SSLUHC [2022] UKSC 33, dismissing the appeal made by the local planning authority and upholding the planning inspector’s decision.  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 appeal was heard by Lord Reed (President), Lord Hodge (Deputy President), Lord Kitchin, Lord Sales and Lady Rose.  

The first issue in the appeal was “a general legal question whether a local planning authority can impose by a planning condition an obligation on the developer of land to dedicate roads, which it constructs as part of its development, as public highways” [27].  

The Supreme 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 [1964] 1 WLR 240.  It concluded at [76] that “it would have been ultra vires to require the dedication of the access roads as a highway by means of a planning condition”.  

The Supreme Court held at [44] that “Hall v Shoreham is 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”.  Hall v Shoreham was described at [41] and [64] as an early example of the application of the principle of legality, with the court’s reasoning in Hall v Shoreham emphasising the circumvention of the statutory compensation regime under the highways legislation [45].  The case held that “it was unreasonable for the local planning authority to impose the condition because the authority could have exercised powers of compulsory acquisition under the Highways Act 1959; imposing the condition had deprived the landowner of its entitlement to compensation” [47].  

The Supreme Court commented at [36] that “statutory provisions relating to planning conditions do not exist in a vacuum but fall to be interpreted in the context of the 1990 Act as a whole, including the provisions relating to planning obligations and compulsory purchase” and pointed out that “over the years it has been judge-made law which has clarified the meaning of the statutory provisions relating to planning conditions and has established an understanding of their role in the planning system”.  

The Supreme Court recognised at [63] that there is a fundamental conceptual difference between a planning condition, unilaterally imposed by the local planning authority, and a planning obligation, to which the developer can be subjected only by its voluntary act and where the provisions are agreed between the planning authority and the developer.  The Court noted that at [55]:

“government policy and the law have rejected the “buying and selling of planning permissions” where a local planning authority makes exorbitant demands of a developer or a developer offers planning gain which is not sufficiently related to its proposal in the hope of obtaining planning permission”.  

The Supreme Court concluded at [65] that “a planning condition which purports to require a landowner to dedicate roads on its development site as public highways would be unlawful” and that “to hold otherwise would be to undermine a foundational rule of the planning system on which people have relied for decades and create uncertainty where there should be certainty”.  The Court held at [61] and [63] that the options for a planning authority which wants to require the dedication of roads within a development site as public highways are to negotiate an agreement with the developer or to exercise compulsory purchase powers.  

On the interpretation of planning conditions, the Supreme Court said this at [66]:

“In Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; [2019] 1 WLR 4317 this court has given guidance on the interpretation of planning conditions. In summary, there are no special rules for the interpretation of planning conditions. They are to be interpreted in a manner similar to the interpretation of other public documents. The court asks 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 consent 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. This court has rejected assertions that there can never be a term implied into a condition in a planning permission, but it has recognised that a court must exercise great restraint in implying terms into public documents which have criminal sanctions: Trump International, paras 33-36; Lambeth LBC, para 18. As a planning permission is a document created within the legal framework of planning law, the reasonable reader is to be treated as being equipped with some knowledge of planning law and practice: see the judgment of the Court of Appeal delivered by Lewison LJ in the Lambeth LBC case [2018] EWCA Civ 844; [2019] PTSR 143, para 52, and the judgment of Lewison LJ in the present case, para 64.”

On the second issue, the Supreme Court upheld the inspector’s decision that the condition regulated the quality and timing of the construction of the roads and did not purport to require them to be dedicated as public highways, so that the condition was valid.  

A copy of the judgment is available here.

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