Swindon Borough Council argued that planning condition 39 required a developer to dedicate access roads as public highways. The Supreme Court held that a planning condition cannot lawfully require dedication of land as a public highway without compensation, and that condition 39 addressed only road construction standards, not dedication.
Background
The development site formed part of the proposed New Eastern Villages (‘NEV’) north-east of Swindon, intended to deliver approximately 8,000 homes, employment land, and associated infrastructure. In 2014, an application was made for outline planning permission for employment development on the site, which was granted by Swindon Borough Council (‘Swindon BC’) in June 2015, subject to 50 conditions and a section 106 agreement. It was envisaged that roads within the site would connect to neighbouring development sites comprising the NEV south of the A420. The Illustrative Landscape Masterplan showed a North-South access road and an East-West spine road extending to the site boundaries.
Critically, the section 106 agreement contained no obligation requiring the developer to dedicate these internal access roads as public highways. Nor was any agreement made under section 38 of the Highways Act 1980. Swindon BC subsequently asserted that condition 39 of the outline planning permission imposed an obligation on the developer, DB Symmetry Ltd (‘DBSL’), to dedicate the access roads as public highways. DBSL applied for a certificate of lawfulness confirming that formation and use of the roads as private access roads was lawful. Swindon BC refused the certificate; the Secretary of State’s Inspector allowed DBSL’s appeal.
The Issue(s)
Two principal issues arose:
1. The general legal question
Whether a local planning authority can lawfully impose, by means of a planning condition, an obligation on a developer to dedicate roads within a development site as public highways, thereby avoiding the payment of compensation.
2. The interpretation of condition 39
Whether condition 39 of the outline planning permission required the developer to dedicate the access roads as public highways, or merely regulated the physical standards and timing of their construction.
The Parties’ Key Arguments
Swindon BC (Appellant)
Swindon BC argued that condition 39, properly construed, required the developer to dedicate the access roads as highways, giving the public rights of passage. It submitted that such a condition would serve a planning purpose, fairly and reasonably relate to the permitted development, and would not be irrational. Swindon BC further argued that the Court of Appeal erred in Hall v Shoreham if it held that a planning condition could not lawfully require such dedication, and that the decision was confined to its own facts.
DBSL and the Secretary of State (Respondents)
The respondents argued that the Court of Appeal correctly followed Hall v Shoreham in holding that a planning condition cannot require dedication of public rights of way without compensation when the statutory scheme provides for such dedication by agreement or compulsory acquisition with compensation. On interpretation, they argued condition 39 addressed only construction standards and timing, not the legal status of the roads.
The Court’s Reasoning
The lawfulness of requiring highway dedication by planning condition
Lord Hodge, delivering the unanimous judgment, undertook a comprehensive analysis of the statutory provisions and case law. He examined sections 70 and 72 of the Town and Country Planning Act 1990, noting that while section 70 confers power to impose ‘such conditions as they think fit’, these provisions do not exist in a vacuum but must be interpreted in the context of the Act as a whole, including provisions for planning obligations (section 106) and compulsory purchase (sections 226-227).
Lord Hodge traced the development of planning law from Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958], through Fawcett Properties Ltd v Buckingham County Council [1961], Mixnam’s Properties Ltd v Chertsey Urban District Council [1965], and Newbury District Council v Secretary of State for the Environment [1981], which confirmed three tests for the validity of planning conditions: they must (1) be imposed for a planning purpose, (2) fairly and reasonably relate to the permitted development, and (3) not be so unreasonable that no reasonable planning authority could have imposed them.
Central to the reasoning was the Court of Appeal decision in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964]. Lord Hodge analysed the three judgments in that case in detail, noting that despite differences of approach among the Lord Justices, the case established as a matter of principle that a planning condition which effectively required a landowner to dedicate land as a public highway was ultra vires on the ground of Wednesbury unreasonableness, given that the authority had the option of compulsory purchase under the Highways Act 1959 which would have entitled the landowner to compensation. Lord Hodge stated:
in my view 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.
Lord Hodge rejected Swindon BC’s submissions that the decision was confined to its own facts. He described Hall v Shoreham as applying an early example of the principle of legality, referring to Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927]:
a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms.
He confirmed this remained good law subject to Lord Reid’s qualification in Westminster Bank Ltd v Beverley Borough Council [1971] that such intention may appear ‘by irresistible inference from the statute read as a whole’.
Lord Hodge acknowledged the conceptual distinction between planning conditions (imposed unilaterally by the authority) and planning obligations (entered into voluntarily by the developer under section 106). He stated:
there is a fundamental conceptual difference between a unilaterally imposed planning condition and a planning obligation: the developer can be subjected to a planning obligation only by its voluntary act, normally by entering into an agreement with the planning authority, and not by the unilateral act of the planning authority.
He observed that government policy, from Circular No 58/51 in 1951 through to the 2014 National Planning Practice Guidance, had consistently stated that conditions requiring the cession of land for road improvements should not be attached to planning permissions. While not legally binding, these statements demonstrated an established understanding of the scope of planning conditions relevant to interpreting condition 39.
On the first issue, Lord Hodge concluded:
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 uncertainty where there should be certainty.
The interpretation of condition 39
Lord Hodge applied the approach to interpretation of planning conditions set out in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019]: the court asks what a reasonable reader, equipped with some knowledge of planning law and practice, would understand the words to mean in context.
He gave six reasons for concluding that condition 39 addressed only the quality and timing of construction, not highway dedication:
First, the condition made no mention of any requirement to dedicate roads as public highways and did not require the landowner to grant any public rights of way. The use of the word ‘highway’ was consistent with an assumption that dedication had been or would be dealt with in the section 106 agreement.
Second, the condition gave no adequate guidance as to the extent of land to be dedicated, in contrast with the section 106 agreement’s precise identification of land to be transferred.
Third, the stated reason for the condition disclosed its purpose as ensuring adequate means of access in the interests of highway safety, not ensuring a public highway through the site.
Fourth, the reason drew a distinction between the access roads and the public highway, as the access roads were to provide ‘adequate means of access to the public highway’.
Fifth, the condition was located among conditions predominantly addressing design, method of construction, and physical characteristics of access.
Sixth, the wider legal framework, including Hall v Shoreham, established government guidance, and the practice of using section 106 agreements for highway dedication, would strongly suggest to the reasonable reader that Swindon BC did not intend to require dedication through this condition.
Practical Significance
This decision is of considerable importance in planning law. It authoritatively confirms at Supreme Court level, for the first time, the principle established by the Court of Appeal in Hall v Shoreham (1964) — that a local planning authority cannot use a planning condition to require a landowner to dedicate land as a public highway without compensation. The Supreme Court treats this as a foundational rule of the planning system and grounds it in the principle of legality: general statutory powers cannot be used to deprive individuals of property rights without compensation unless Parliament has clearly so provided.
The judgment clarifies the boundary between planning conditions (unilaterally imposed) and planning obligations (voluntarily agreed under section 106). While a developer may agree by planning obligation to dedicate roads as public highways, such a result cannot be imposed by condition. The options available to a planning authority are negotiation of a section 106 agreement or exercise of compulsory acquisition powers with compensation.
The decision also provides guidance on the interpretation of planning conditions, emphasising that the reasonable reader is equipped with knowledge of planning law and practice, including the well-established government guidance against requiring cession of land by condition. Local planning authorities must therefore ensure that any requirement for highway dedication is properly secured through a section 106 agreement rather than through planning conditions.
Verdict: The Supreme Court unanimously dismissed Swindon Borough Council’s appeal. It held that (1) a planning condition which purports to require a landowner to dedicate roads on its development site as public highways would be unlawful, and (2) on its proper construction, condition 39 did not purport to require such dedication but addressed only the quality and timing of construction of the access roads. The Inspector’s decision and the certificate of lawfulness were upheld.
Source: DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33
