In the recent case of DB Symmetry Ltd and Another v Swindon Borough Council which was heard in the Supreme Court, the Court has provided guidance as to the use of a Planning Condition to impose an obligation on the developer of land to dedicate roads which it constructs as part of its development as public highways.
The Authority in question sought to dedicate public rights of way over another development to provide a connection to the adjoining development which was part of a wider master planned area.
The ability to impose planning conditions is located within Sections 70 and 72 of the Town & Country Planning Act 1990. The provisions themselves do not expressly set clear limits on the scope of planning conditions – for instance, Section 70 speaks of the Local Authority imposing such conditions as they think fit. Section 72 talks of regulating the development or use of land under the control of the applicant.
The broad basis for imposing a condition is found in the PYX Granite Co Ltd case which confirmed the test that planning conditions must be fairly and reasonably related to the permitted development and that the planning authority must not use its powers for an ulterior purpose.
There was also discussion of this issue in the case of Hall and Shoreham where a similar condition was considered. In this case, the Court decided that the Council could acquire the land for the required roadway by the compulsory purchase on payment of compensation and that as a consequence if there was a desire to provide a dedicated highway that a condition seeking this was so unreasonable as to be ultra vires. In this particular case, it compelled the Developer virtually to dedicate the road to the public where the authority had the option of compulsory purchase under highways legislation.
In the case of Newbury District Council v The Secretary of State for the Environment, the House of Lords confirmed that the power to impose planning conditions was not unlimited and there were three legal tests for the validity of such conditions:
Therefore, the Court reached a view that it was ultra vires to seek dedication of highway by means of planning condition.
It should be noted that the obvious solution is the use of a planning obligation. In this regard, it has been accepted that developers should meet the external costs of a development including the improvement of infrastructure such as roads, drains, schools and community facilities.
Therefore, the learning point from the case is that if one is seeking to secure the dedication of highways as part of a development, that a 106 obligation is the appropriate route.
For more information, please contact Gareth Pinwell in our Planning team.
