DB Symmetry Ltd v Swindon Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lord Reed,Lord Kitchin,Lord Sales,Lady Rose |
| Judgment Date | 14 December 2022 |
| Neutral Citation | [2022] UKSC 33 |
| Court | Supreme Court |
[2022] UKSC 33
Lord Reed, President
Lord Hodge, Deputy President
Lord Kitchin
Lord Sales
Lady Rose
Appellant (Swindon Borough Council)
Richard Harwood KC
Victoria Hutton
(Instructed by Swindon Borough Council)
First Respondent (DB Symmetry Ltd)
Richard Humphreys KC
(Instructed by Jones Day (London))
Second Respondent (Secretary of State for Levelling Up, Housing and Communities)
Richard Honey KC
Charles Streeten
(Instructed by Government Legal Department)
Heard on 12 July 2022
Lord Hodge (with whom Lord Reed, Lord Kitchin, Lord Sales and Lady Rose agree):
The principal issues on this appeal are whether it is lawful for a planning authority in granting planning permission for a development to impose a planning condition that the developer will dedicate land within the development site to be a public highway, and whether the planning condition in issue is properly construed as having that effect. The appellant, Swindon Borough Council (“Swindon BC”), submits that the Court of Appeal in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 (“ Hall v Shoreham”) erred in law if in that case they held that a local planning authority could not lawfully require a landowner by means of a planning condition to dedicate land as a public highway and thereby avoid the payment of compensation.
The development site (“the site”), which comprised agricultural fields immediately south of the A420 road, is part of the proposed New Eastern Villages (“the NEV”), which lie to the north-east of Swindon. The emerging Swindon Borough Local Plan 2026 identified the NEV as a strategic allocation of land to deliver sustainable economic and housing growth, which would provide about 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses.
The NEV lie to the east of the A419 dual carriageway which runs north from the M4 motorway. The A420 cuts through the NEV and meets the A419 from the east. It is envisaged that the parts of the NEV to the south of the A420, which include the site, will be connected to the wider road network at three points: to the A420 at Symmetry Park (the connection to be from the site) and at a point further east, and a new Southern Connector Road will be built to join the NEV from the south to the A419 Commonhead Roundabout.
In 2014, Gleeson Development Ltd and Portfolio Holdings Ltd submitted a planning application in relation to the site for outline planning permission 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)
Site Address: Eastern Villages South, Land at and to the South of A420 (Great Stall Middle), Swindon, Wilts.”
On 3 June 2015 Swindon BC granted an outline planning permission for this development on the site, subject to 50 conditions. It is clear from the Illustrative Landscape Masterplan referred to in condition 50 of the outline planning permission that it was envisaged that there would be road connections between the site and other development sites which would comprise the proposed NEV located to the south of the A420. These roads would enable the other development sites to connect with the wider road network. Lewison LJ, who delivered the leading judgment in the Court of Appeal ( [2020] EWCA Civ 1331; [2021] PTSR 432), described the roads within the site shown in the Illustrative Landscape Masterplan in these terms (paras 3 and 4 of his judgment):
“[3] … 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).
[4] 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’.”
It was an important element of the proposed NEV that the development sites within the NEV should be connected with each other and the wider road network. Lewison LJ referred to the report of the planning officer to Swindon BC's planning committee when it considered the application for outline planning permission for the site, which pointed out that the site was part of a wider development proposal and was to “integrate physically and functionally” with adjoining development. The NEV were to be a series of interconnected villages and each scheme had to demonstrate how it fitted into the wider NEV. The report stated that 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”.
It is clear from her recommendation that the planning officer envisaged that the outline planning permission, if granted, would be subject to the satisfactory completion of a planning obligation under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”) containing an infrastructure package to mitigate the impact of the development. I discuss the difference between planning conditions and planning obligations at paras 50–64 below. For the moment, it is sufficient to say that planning obligations are those which are, generally, agreed between the local planning authority and the owner of the land under section 106 of the 1990 Act. A planning obligation differs from a planning condition, which is imposed by the local planning authority. It is, as discussed below, a common planning practice to include in an agreement under section 106 of the 1990 Act an obligation on the developer and owner of the land to dedicate part of its land for public use. This was not done in this case. A section 106 agreement was entered into on 2 June 2015 but it contained no provision requiring the dedication of the access roads within the site as public highways.
Further, as Lewison LJ recorded in para 6 of his judgment:
“One section of the report was headed ‘Infrastructure requirements’. Paragraph 63 said that the site was ‘a key gateway’ of the NEV; and para 64 referred to the need for proposals to meet the infrastructure needs to mitigate the impact of the development. Para 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 para 64 was regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948) 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’.”
The reference in the report to the section 38 agreement is to an agreement under section 38 of the Highways Act 1980 between a person and the local highways authority under which the person dedicates a way as a highway: see para 33 below. There was also no agreement under section 38 of the Highways Act 1980.
Swindon BC now asserts that condition 39 of the outline planning permission imposes on the developer the obligation of dedicating the access roads shown as highways on the Illustrative Landscape Masterplan as public highways. Condition 39 states:
“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.”
Swindon BC asserts that this condition requires the developer to dedicate the roads as public highways. As explained below, the developer, DB Symmetry Ltd (“DBSL”), and the Secretary of State for Levelling Up, Housing and Communities (the “Secretary of State”), who are the respondents, contend that the condition simply regulates the physical attributes of the roads to be constructed before the site is brought into use. As this dispute, the second principal issue on this appeal, concerns the correct interpretation of this planning condition it is necessary to set out some other relevant conditions which provide the context of the disputed condition.
Condition 3 required the submission of reserved matters and the implementation of the development to be in broad accordance with the Illustrative Landscape Masterplan. The internal access points into development areas...
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