9th February 2023
Many within the development industry will be aware of the long awaited conclusion to the long-running Hillside Parks case (summarised here), in which the Supreme Court issued a comprehensive judgment and dismissed the developer’s appeal. Whilst developers involved with large development sites are busy considering their plans for phasing and applications for variations to the consented scheme, they should be aware that Hillside is not the only planning case to hit the highest court in the land recently. They should also bear in mind another Supreme Court judgement – this time concerning dedication of highways – that has been somewhat overshadowed.
The ruling in DB Symmetry Ltd v Swindon Borough Council  means that if a planning authority requires landowners to dedicate land to be adopted as a highway, they must impose this by way of a planning obligation rather than condition.
Landowners and developers should check conditions imposed on their planning consents which include the requirement to give up land to create an adopted highway. In light of DB Symmetry, such a condition may be unlawful. The requirement to dedicate access roads as public highways is a valid one, but the Supreme Court has confirmed that this should be set out in a legal agreement, rather than imposed unilaterally by condition.
Developers should scrutinise planning consents related to dedication of highways/highways access. If access roads are to become adopted highways, this should be done under a legal agreement, not a planning condition.
Landowners/developers should also remember the principle that the scope of a planning condition prescribed by a planning authority is narrower than a planning obligation negotiated between the parties.
DB Symmetry also reaffirms that, when interpreting conditions, the common sense approach, when looking at the ordinary meaning of the words used, is the one to take .
Swindon Borough Council granted planning consent subject to a condition requiring that the units to be constructed would be served by a ‘fully functional highway’ constructed to at least basecourse level. The developer contended that this meant that the roads could remain as private roads as long as they were constructed to the standard set out in the condition. The planning authority disagreed and considered that compliance with the condition would necessitate the roads not only to be constructed as required, but also be dedicated for use by the public.
The matter went before a planning inspector, who issued a lawful development certificate confirming that the roads simply needed to be fully capable of use as a road upon which traffic could pass. The High Court disagreed and quashed the certificate. Following this, the Court of Appeal held that a condition requiring the dedication of land as a highway without compensation was unlawful. It reinstated the certificate.
The Court of Appeal’s ruling has now been confirmed by the Supreme Court. Following well established case law principles, the Supreme Court approached the interpretation of the condition with common sense, looking at the ordinary meaning of the words used. It held that there is a critical difference between a planning obligation entered into willingly under section 106 of the Town and Country Planning Act 1990 and a planning condition imposed pursuant to section 70(1)(a) of that act.
The Supreme Court’s ruling is a helpful reminder of the principle that the scope of a planning condition prescribed by a planning authority is narrower than a planning obligation negotiated between the parties. It also reaffirms, once again, that when interpreting conditions, the common sense approach is the one to take.
Walker Morris’ expert Planning & Environment team advises on the full range of planning and environmental legal and practical issues. The team is able to support clients from cradle to grave, offering strategic, risk management and practical advice in relation to projects and real estate/planning transactions, as well as dispute resolution and advocacy services in relation to queries or cases concerning planning, environmental and public law issues, including judicial review applications, court proceedings, investigations, inquiries and other regulatory procedures.
For further advice or information on the DB Symmetry case, or for tailored advice in connection with any development projects or planning proposals or concerns more generally, please contact Victoria Leam or any member of the Planning & Environment team.
  UKSC 33
 compare this with the Court of Appeal’s recent judgment on the correct approach to interpreting planning policy wording – see our recent briefing