Swindon Borough Council v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 01 July 2019 |
| Neutral Citation | [2019] EWHC 1677 (Admin) |
| Date | 01 July 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5012/2018 |
[2019] EWHC 1677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/5012/2018
Richard Harwood QC (instructed by Directorate of Law, Swindon BC) for the Claimant
Charles Streeten (instructed by Government Legal Department) for the First Defendant
Richard Humphreys QC (instructed by Jones Day) for the Second Defendant
Hearing date: 18 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this judgment, I shall refer to the Claimant as “the Council”; the First Defendant as “the Secretary of State” and the Second Defendant as “DBS”.
This is an application for planning statutory review under section 288 of the Town and Country Planning Act 1990, challenging the decision of the Secretary of State's Planning Inspector dated 6 November 2018 allowing DBS's appeal against the Council's refusal of a Certificate of Lawfulness of Proposed Use or Development (“Certificate of Lawfulness”) in respect of land at Symmetry Park, South Marston, Swindon (“the site”).
As its name suggests, a Certificate of Lawfulness certifies that a proposed use of buildings or land, or other operations proposed to be carried out, would be lawful: Town and Country Planning Act 1990, section 192(1). The proposed use would be lawful if it would not constitute a breach of planning control.
The question whether a Certificate of Lawfulness should or should not have been granted in this particular case turns on the question whether the access roads within the development could only be used by members of the public with the permission of the site owners or management company, or whether, as the Council contends, the outline planning permission for the development requires the public to have rights of way, including in vehicles, over those access roads. That, in turn, depends on the construction of the planning permission.
For the reasons set out in this judgment, I have concluded that on its true construction, the planning permission requires the public to have rights of way over the access roads, and the Certificate of Lawfulness was wrongly issued.
Background
On 3 June 2015 the Council granted outline planning permission in respect of the site in these terms:
“ 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).”
The permission was subject to 50 conditions.
By condition 3, the submission of reserved matters and the implementation of development was required 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 reasons given were, inter alia:
“ 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”.
The New Eastern Villages Development Area is referred to in some of the relevant documentation as the NEV, and I will adopt that abbreviation in this judgment. It comprises the site and land around it, all on the east side of the A419 which runs from North to South. It comprises a mix of housing, employment, and retail development including, I was informed, two new villages to the South of the site.
Condition 50 of the outline permission made it clear that the approval was in respect of the accompanying plans and documents, which are listed, and included the Illustrative Landscape Masterplan. This shows the application site lying to the immediate south of the A420. Within the western part of the site, a road runs southward from a new junction with the A420 and continues to the southern boundary. It is labelled “North-South access road.” Halfway down that road a roundabout is shown, from which another road, described on the plan as the “East-West spine road,” runs to the eastern boundary of the site. The portion of the North-South access road which runs from the A420 junction to the roundabout is described as a “dual carriageway” on the Masterplan. The southerly continuation of the North-South access road from the roundabout is labelled “North-South link to wider NEV” and described as a single carriageway. The annotations to each road are that they contain a “carriageway” and “footpaths/cycleways to both sides”, giving the respective widths (between 59 and 61 metres).
Development area A on the plan is on the eastern side of the North-South access road, and to the north of the East-West spine road, from which vehicular access to it is indicated on the plan. Area B is below area A, to the south of the East-West spine road and on the eastern side of the “North-South link to the wider NEV”, with vehicular access to it indicated from the latter (though there was sufficient flexibility to allow for access from the East-West spine road as well, or instead). There is a smaller development area C, which is on the western side of the North-South access road, above the roundabout, and quite close to the A420.
The Illustrative Masterplan was amended to show the East-West route and North-South route extending through the site and into adjoining land. The Design and Access Statement Addendum No. 2 (also expressly incorporated by condition 50) referred to this amendment as being made “ to show highways extending to the site boundaries… to show the connectivity of the site to surrounding land.” Other details on the Illustrative Masterplan included a proposed strategic footpath and cycle link to connect to adjacent sites within the NEV, running east-west along the southern side of the site; a new public footpath along the northern and eastern sides of the site; and the proposed diversion of an existing public footpath on the western side.
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 “ 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, which is at the heart of this dispute, provides as follows:
“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.”
[Emphasis added.]
The day before the outline permission was granted, the Council entered into an agreement with the developer and the owners of the land under section 106 of the Town and Country Planning Act 1990, (“s.106 agreement”) subject in the usual...
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