Planning Conditions and Highways – the Symmetry Appeal

The Court of Appeal have allowed the appeal of DB Symmetry against a decision of the High Court that a planning condition required the dedication of roads as highways: Swindon Borough Council v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 1331.

Symmetry's predecessors had applied for planning permission for commercial developments as part of the New Eastern Villages strategic allocation to the east of Swindon.  Their application said that the drawings showed 'highways extending to the site boundaries" the purpose being to "show the connectivity of the site to surrounding land".  Those included two major roads going past the development parcels to the edge of the site. Planning permission was granted with condition 39 providing:

"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."

Subsequently Symmetry contended that this did not require the public to be given a right of passage over those roads.  They would therefore be able to demand licence fees before allowing access. An Inspector agreed in a lawful development certificate appeal.

That decision was quashed by Mrs Justice Andrews: [2019] EWHC 1677 (Admin).

The Court of Appeal have overturned that decision.  In the leading judgment Lord Justice Lewison held that the decision in  Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240 had prohibited 'a condition that requires a developer to dedicate land which he owns as a public highway without compensation'.  He considered that decision to be binding on the Court of Appeal.  One principle which applied to interpretation was the validity or validation principle 'that the court will prefer an interpretation which results in the clause or contract being valid as opposed to void' and would therefore prefer a realistic construction which is lawful, rather than the most natural interpretation if that would be unlawful.

The interpretation adopted by the High Court was the most natural but would lead to an unlawful condition.  The Inspector's interpretation which left the roads private was a realistic one and so should be preferred.

A copy of the judgment is here.

Richard Harwood QC appeared for Swindon Borough Council.