Planning conditions requiring dedication of highway land unlawful

The Court of Appeal recently decided in DB Symmetry v Swindon Borough Council & Another [2020] EWCA Civ 1331 to uphold the long imposed ban on planning conditions requiring dedication of land as a public highway without compensation.

The case concerned a site known as the 'New Eastern Villages' in Swindon to the south of the A420, which is part of a strategic development. DB Symmetry applied to build industrial, light industrial and warehousing development on the site.In granting planning permission, the Council imposed Condition 39, which stated that:"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 base course 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 argument between the Council and DB Symmetry was whether that condition required DB Symmetry to dedicate those roads as public highways. The Council argued that requiring dedication without compensation was lawful, and that a public authority may lawfully use powers which do not involve the payment of compensation in preference to other powers that do.The Court rejected the Council’s argument and held that planning conditions could not require dedication of land as a public highway without compensation. As a result, the Court decided that DB Symmetry’s argument as to the interpretation of the condition was to be preferred; namely, that the planning condition only related to the construction of the roads and not the dedication of them for public use.

Our View

The condition in the DB Symmetry case is notably positively worded, as opposed to a restriction on development, for example, not to commence or occupy the development.The DB Symmetry judgment relied upon Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 W.L.R. 240. Although the reporting of the Hall judgment is not entirely clear, it appears that case also related to a positively worded condition.It is also worth noting that the Court of Appeal in the DB Symmetry case said that it did not see a difference for this purpose between dedication and transferring the land. That perhaps gives some cause for additional uncertainty and caution on future planning permissions.However, in our view, the take away points are as follows:

1. Where practicable, it would be preferable to shift highways dedication into a S106 obligation; and
2. On small developments with no S106 agreement, in our view, it is still possible to use a negatively worded condition restricting development until a S278/38 highways agreement is entered into. The S278/38 agreement can then contain the contractual provisions for dedication.

How this will operate in the future is unclear, given the Government announced its proposal in the Planning White Paper to abolish Section 106 obligations and replace both them and the Community Infrastructure Levy with a new “infrastructure levy”. This is a further example of where not all S106 obligations relate to financial matters and the apparent proposal to abolish all S106 obligations has not been fully thought through. We believe the Government is likely to realise the apparent flaw and adjust its proposals in the future, potentially to retain S106 obligations on a more limited basis for obligations that deal with non-financial matters that cannot be included in a planning condition.Please do not hesitate to get in touch with a member of the Planning Team or Environment Team if you wish to discuss Planning conditions.