Supreme Court to consider next week principle on planning conditions, dedication of highways and compensation

The Supreme Court will next week (12 July) consider whether the principle enunciated by the Court of Appeal that a planning condition could not lawfully require the developer to dedicate land for public purposes without the payment of compensation, is correct in law.

That principle was set out in Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240.

The Supreme Court will also set out what, properly interpreted in light of the answer to the first issue, is the legal effect of the relevant planning condition.

The appeal concerns the meaning of a condition that was attached to the grant of planning permission for a development site in the outskirts of Swindon.

The proposed development included two roads, a "North-South access road" which ran southward from a new junction with the A420 and continued to the southern boundary of the site, and an "East-West spine road" which ran to the eastern boundary of the site from a roundabout on the North-South access road.

Swindon Borough Council’s planning committee granted outline planning permission for the site subject to a number of conditions, one of which 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 matter 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. 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 developer subsequently applied for a certificate under section 192 of the Town and County Planning Act 1990 to confirm that the formation and use of private access roads within the development would be lawful. Swindon refused to issue the certificate.

The Secretary of State’s Planning Inspector allowed the developer’s appeal against Swindon’s refusal of the certificate. The High Court allowed Swindon’s application for a statutory review of the Inspector’s decision.

The developer then successfully appealed the judgment to the Court of Appeal in DB Symmetry Ltd v Swindon Borough Council & Anor [2020] EWCA Civ 1331.

Swindon appealed to the Supreme Court.

A Supreme Court panel comprising Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose will hear the case on 12 July 2022.