A recent decision of the Court of Appeal on 16 October 2020 has outlined potential issues with regard to the wording and interpretation of planning conditions.
The case involved the development of a large industrial estate at Swindon.
The issue before the Court was whether a condition attached to the grant of a Planning Permission for a large employment development lawfully required the public to have rights of passage over the roads to be constructed as part of the development.
The condition provided 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 a fully functional highway, the hard surfaces of which are constructed to at least base course level prior to occupation and bringing to use.
The Council sought to apply an interpretation to this that the condition required the Developer to dedicate the road as a public highway.
The developer took the view that the condition merely regulated the physical attributes of the road that had to be constructed.
The matter was the subject of an appeal in relation to a refusal of Lawful Development Certificate sought in connection with the roads, a hearing in the High Court and finally a hearing in the Court of Appeal.
The Court found that the guidance and decided case authorities pointed to the fact that there was a clear distinction as to what could be required by planning condition and what could be required by a Section 106 obligation.
In this case, the accompanying 106 agreement did not specify that the highways had to be dedicated under Section 38 of the Highways Act and was silent.
The Court took the view that that if the roads were to become highways adoptable at public expense there were numerous statutory routes which could be imposed either by a planning obligation in a 106 Agreement or the completion of a Section 38 highway adoption agreement. This did not take occur in this case
As a consequence, the Court took the view that it was not possible to use a planning condition so as to require a Developer to dedicate the roads as public highway and that the appropriate way would have been, if a Developer agreed, to include such a requirement in the Section 106 Agreement for the development.
It further gave guidance that the condition should be interpreted as having the normal meaning that a reasonable reader would understand. Having applied that test, it found that there was no requirement to dedicate the highways pursuant to the condition.
Potentially, the condition could have far reaching implications – both for the site and the Council – as there is no requirement for those roads to become public highways and remain private in the ownership of the Developer. This could lead to a situation where the Developer could seek to control access over the roads which gain access to wider areas of the borough.
This case provides valuable guidance both as to the interpretation of conditions and perhaps interpretation of conditions for those purchasing sites with the benefit of planning permission to ascertain whether the highways will become public highways or remain private.
For more information on the article above please contact Gareth Pinwell.