DB Symmetry Ltd v Swindon Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Arnold,Lord Justice Nugee |
| Judgment Date | 16 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1331 |
| Date | 16 October 2020 |
| Docket Number | Case No: C1/2019/1730 |
| Court | Court of Appeal (Civil Division) |
and
[2020] EWCA Civ 1331
Lord Justice Lewison
Lord Justice Arnold
and
Lord Justice Nugee
Case No: C1/2019/1730
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
PLANNING COURT
MRS JUSTICE ANDREWS DBE
CO/5012/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Humphreys QC (instructed by Jones Day) for the Appellant
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: 7 th and 8 th October 2020
Approved Judgment
Introduction
The issue on this appeal is whether a condition attached to the grant of planning permission for employment development of various kinds lawfully required the public to have rights of passage over roads to be constructed as part of the development. A planning inspector said “no” but Andrews J said “yes”. Her judgment is at [2019] EWHC 1677 (Admin). With my permission, the developer appeals.
The facts
The development site lies in the north-eastern outskirts of Swindon to the south of the A420. It is part of what the local development plan calls the New Eastern Villages (“the NEV”) which are identified as a strategic allocation to deliver sustainable economic and housing growth, including the provision of about 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The application for planning permission on the development site was the first part of the NEV to be determined.
The application for planning permission was accompanied by an Illustrative Landscape Masterplan. That showed the application site lying to the immediate south of the A420. Within the western part of the site, a road ran southward from a new junction with the A420 and continued to the southern boundary. It was labelled “North-South access road”. Halfway down that road a roundabout was shown, from which another road, described on the plan as the “East-West spine road”, ran to the eastern boundary of the site. The portion of the North-South access road which ran from the A420 junction to the roundabout was described as a “dual carriageway” on the Masterplan. The southerly continuation of the North-South access road from the roundabout was labelled “North-South link to wider NEV” and described as a single carriageway. The annotations to each road were that they contained a “carriageway” and “footpaths/cycleways to both sides”, giving the respective widths (between 59 and 61 metres).
Three development areas were indicated: area A on the eastern side of the North-South access road, and to the north of the East-West spine road; area B to the south of the East-West spine road; and area C, on the western side of the North-South access road, above the roundabout, and quite close to the A420. An addendum to the Design and Access Statement stated that it had been amended “to show highways extending to the site boundaries”. The purpose of that amendment was to “show the connectivity of the site to surrounding land”.
The application for outline planning permission was placed before Swindon's planning committee. We do not have a minute of the meeting; but we do have a copy of the officer's report that the committee considered. One of the points that the officer made in several paragraphs of the report was that the application site was part of a wider development proposal. It was to “integrate physically and functionally” with adjoining development. The NEV was to come forward as “a series of new interconnected villages.” Each scheme had to demonstrate how it fitted into the wider NEV. The proposal “must provide connections to future development within the [NEV] in the interests of enabling the comprehensive and sustainable development of the NEV as a whole”.
One section of the report was headed “Infrastructure requirements”. Paragraph 63 said that the site was “a key gateway” to the NEV; and paragraph 64 referred to the need for proposals to meet the infrastructure needs to mitigate the impact of the development. Paragraph 65 said that the transport requirements arising from the scheme included “a combination of direct provision of infrastructure and financial contributions towards mitigation of direct impact.” But importantly, the legal context in which they were discussed in paragraph 64 was regulation 122 of the Community Infrastructure Levy Regulations 2010 dealing with planning obligations rather than conditions. It is also of note that the heading to what became condition 37 included a reference to a “section 38 agreement”.
At the end of what was a very comprehensive report, the recommendation was to grant planning permission “subject to the satisfactory completion of a planning obligation”.
On 3 June 2015 Swindon granted outline planning permission in respect of the site, subject to no less than 50 conditions. The development was described as:
“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)”.
Condition 3 required the submission of reserved matters and the implementation of development to be in broad accordance with the Illustrative Landscape Masterplan. The internal points of access into development areas A and B (denoted on the plan) were to be subject to detailed assessment at the reserved matters stage. The reason for that condition was:
“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”.
Condition 4 required a phasing plan including “details of buildings, roads and footways” to be submitted and the development to be carried out in accordance with it. Conditions 9 and 10 required details of “the surface treatment of any roadways, footpaths, footways or parking areas” to be submitted within the strategic landscaping and each development phase respectively. Condition 16 required there to be acoustic fencing between the access road and Lock Keepers Cottage; and precluded any occupation of the development before the completion of the submitted landscape design.
Condition 34 required parking and turning areas to be constructed in accordance with Swindon's parking standards “in the interests of amenity and highway safety.” A number of other conditions were imposed for reasons which were expressed to be in the interests of highway safety, for example, condition 40, which related to a minimum footway width for a proposed bus shelter; condition 42, which stipulated the minimum distance between entrance gates and the back edge of the highway; condition 43, relating to the gradient of private accesses within 10 metres from junctions with “the public highway”; condition 44, which required visibility splays for all private accesses to be provided before the development was brought into use; and condition 45, which required the submission of detailed junction analysis of “any junctions with the north south spine road to inform the design and ensure appropriate capacity”.
Condition 37, under the heading “Local Highways Authority”, provided as follows:
“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.”
Condition 38, entitled “Foot/Cycleways” states that:
“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.”
Condition 39 is the condition on which this appeal turns. It stated:
“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.”
The dispute between the parties is whether that condition required the developer to dedicate the roads as public highways (as Swindon contends) or whether it merely regulates the physical attributes of the roads (as the developer, supported by the Secretary of State) contends).
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