DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33

A developer challenged whether a planning condition required dedication of access roads as public highways. The Supreme Court held that planning authorities cannot impose such requirements via conditions, as this would circumvent compensation rights. The condition in question addressed construction standards, not dedication.

Facts

The development site formed part of the proposed New Eastern Villages (NEV) near Swindon, intended to provide housing, employment land, and associated infrastructure. Swindon Borough Council granted outline planning permission in 2015, subject to 50 conditions and a section 106 agreement. The section 106 agreement did not include any obligation to dedicate the internal access roads as public highways. The council later asserted that condition 39, which required access roads to be constructed to specified standards, obliged the developer (DB Symmetry Ltd) to dedicate the roads as public highways. The developer applied for a certificate of lawfulness confirming the roads could remain private.

The Planning Condition

Condition 39 stated:

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.

Issues

Two principal issues arose: (1) whether a local planning authority may lawfully impose a planning condition requiring a developer to dedicate land as a public highway without compensation; and (2) whether condition 39 properly construed imposed such a requirement.

Judgment

Lawfulness of Dedication by Condition

Lord Hodge, delivering the unanimous judgment, confirmed that the decision in Hall v Shoreham [1964] 1 WLR 240 established that planning authorities cannot use planning conditions to require landowners to dedicate land as public highways, thereby circumventing statutory compensation provisions. Lord Hodge stated:

I would hold that a planning condition which purports to require a landowner to dedicate roads on its development site as public highways would be unlawful. I reach this conclusion without regret as to hold otherwise would be to undermine a foundational rule of the planning system on which people have relied for decades and create certainty where there should be certainty.

The court distinguished between planning conditions (imposed unilaterally) and planning obligations under section 106 of the Town and Country Planning Act 1990 (entered voluntarily by agreement). A developer can only be subjected to a planning obligation by its voluntary act.

Interpretation of Condition 39

Applying principles from Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, the court held that condition 39 addressed only the quality and timing of construction, not dedication. Lord Hodge identified six reasons supporting this interpretation, including: the condition made no mention of dedication; the reason given for the condition drew a distinction between access roads and the public highway; and the condition was located among conditions predominantly addressing design and construction standards.

Implications

This decision confirms a fundamental limitation on the scope of planning conditions in English planning law. Local planning authorities wishing to secure dedication of roads as public highways must do so through section 106 agreements or compulsory acquisition with compensation. The judgment reinforces the principle of legality, ensuring that landowners’ property rights cannot be taken without compensation unless Parliament has expressly authorised such action. The decision provides clarity and certainty for developers and planning authorities regarding the proper mechanisms for securing public infrastructure.

Verdict: Appeal dismissed. The Supreme Court upheld the Court of Appeal’s decision, confirming that condition 39 did not require dedication of access roads as public highways, and that such a requirement imposed by planning condition would in any event be unlawful.

Source: DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33