When Planning Conditions are not Sufficient to Dedicate Roads as Highways

The Supreme Court concludes that land dedication for highway purposes cannot be set within the scope of a planning condition, but under a Section 106 planning obligation. Kevin Kay of Ardent Consulting Engineers reviews the twists and turns.

By way of background, the developer proposed commercial land-uses on land south of the A420 and east of the A419, as a sub-set of a wider more comprehensive North-East Villages (NEV) development, identified within the Swindon Borough Local Plan 2026.

The Council imposed on the developer a condition requiring it to dedicate a North-South aligned road so that it was able to confer public rights of access onto adjacent parcels, as part of bringing forward a comprehensive wider NEV Masterplan.

It was generally accepted that the development sites within the NEV should be connected with each other and the wider road network.

However, the issue concerned Planning Condition 39 of the outline planning permission, which stated 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 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 key factor rested on whether the above statement:

-?????????provides an expectation that the development roads would be created ‘to the specification of a highway’ only

or

-?????????is explicit enough in its description of a ‘highway’ (also in the absence of a planning obligation) that such roads would be dedicated or transferred as publicly accessible roads.

This was not helped by the fact that a planning obligation requiring grant of dedication as highway land was specifically agreed with the Council (upon notice) to transfer land in/around the A420 for the ‘sole’ purpose of improving the road (“the A420 Improvements Land”).

However, the section 106 agreement contained no obligation to specially ‘transfer or dedicate’ the North-South access road (or the East-West spine road).

As such, would a planning condition be enough??That’s essentially the key question!

In 2015, aware of the commercial ramifications that would arise from the roads remaining private (and requiring recompense from other parties that may wish to rely upon access), an appeal was lodged by the developer against Swindon Borough Council’s decision not to grant a Certificate of Lawfulness of Proposed Use or Development (CLEUD) which had been applied for by the applicant to seek to establish the lawful formation of private access roads

The outcome of the appeal led the Inspector at the time to conclude that Condition 39 only imposed a requirement for the road to be capable of functioning as a highway along which traffic could pass whether private or public, rather than for them to be made available for the use by the general public.

On 14 December 2018 Swindon BC applied to the High Court for statutory review of the Inspector’s decision under section 288 of the 1990 Act. In a judgment dated 1 July 2019 Mrs Justice Andrews quashed the Inspector’s decision.?She held that:

-?????????The 1980 Highways Act referred to the various ‘sub-species’ (i.e. footways, bridleway, highways) as all involving the public having a right of way over them.

-?????????In legal dictionaries and other dictionaries, none of interpreted “highway” as meaning a private road.

-?????????The context for the grant of planning application by Swindon Borough Council referred to a requirement to bring forward the NEV as a comprehensive whole, and that the continuation of this North-South road would have required a public right.

As per the judgement, she concluded that the word “highway” in condition 39 was to be given its ordinary meaning as a public road. The use of the phrase “public highway” in the reason for condition 39 was probably a reference to an adopted [existing] highway running outside the site.?

The above definition would of course not immediately apply to Scotland as The Roads Scotland Act 1984 (Section 151) defines “roads” as having a public right of passage, subject to the limitations The Land Reform (Scotland) Act 2003 (section 5(6)).

I would have to say that, had the saga stopped here, I would probably have agreed with the High Court decision.?It was pretty clear, by implied meaning of context, that Swindon Borough Council’s intentions were to secure the delivery of a comprehensive Masterplan for which included publicly accessible roads to other parts of NEV.

However, it was the legality associated with the ‘imposition’ of a planning condition that was seen as having the potential to contradict with a number of previously held judgements.

On 16 October 2020, the Court of Appeal (Lewison, Arnold and Nugee LJJ) allowed an appeal lodged by the developer, to consider whether to uphold the Inspector’s decision on the CLEUD. ?In summary, it was held that a planning condition that requires a developer to dedicate land as public highway without compensation would be an unlawful planning condition.

In 2022, The Supreme Court was asked to consider an appeal by Swindon Borough Council of this decision.

Much of the opinions centred around the decisions in Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 (“Hall v Shoreham”). This concerned a case where a permission for development by Hall rested on the creation of an access road to land owned by other parties, which the appellant would have needed to rely upon following cessation of a temporary construction access.

This was interpreted as being unreasonable because the authority could have exercised powers of compulsory acquisition under the Highways Act 1959. Imposing the condition had essentially deprived the landowner of its entitlement to compensation.

Going back to this case, it was not disputed that Swindon BC could have achieved the dedication of the access roads as highways by means of a planning obligation under section 106 of the 1990 Act. But that there is a fundamental difference between achieving such a result by ‘agreement’ (i.e. Section 106) and imposing that outcome by means of an ‘imposed’ planning condition.

In its judgement, the Supreme Court reviewed the policy basis for requiring planning conditions, specifically:

-?????????Where these conditions should and should not be used, including the ceding of land to other parties (e.g. as highway);

-?????????Whether the outcomes are directly related to the development being applied for;

-?????????Whether the test of reasonableness would be met under Wednesbury;

The judgement gives no support for the view that a local planning authority may use a planning condition to require the dedication of a road as a public highway, where options otherwise exist for a planning authority to achieve a similar result through agreement from the landowner by means of a planning obligation or through the acquisition of the relevant land by compulsory purchase or agreement.

Para 62 of the Supreme Court Judgement states that:

“... ?a planning obligation to dedicate the access roads as public highways would be a valid planning obligation and I see no reason why such a planning obligation would not have been a material consideration in the grant of planning permission for the development. “

However, it is Swindon Borough Council’s use of the planning condition that erred in law. Para 63 appears to be the killer blow:

“It may appear to some that it does no credit to the law for it to invalidate a planning condition requiring the dedication of roads within a development site as public highways in order to facilitate the development of neighbouring sites while allowing a planning authority to request a developer to enter into an agreement to achieve that result by means of a planning obligation and to treat the existence or non-existence of such an obligation as a material consideration in the determination of the planning application. It may be thought that the developer is faced with Hobson’s choice: to agree to enter the agreement creating the planning obligation or face a refusal of its planning application. There is, however, a fundamental conceptual difference between a unilaterally imposed planning condition and a planning obligation: the developer can be subjected to a planning obligation only by its voluntary act, normally by entering into an agreement with the planning authority, and not by the unilateral act of the planning authority. Further, there may be more scope for a developer to negotiate the terms of an agreement under section 106 of the 1990 Act as the planning authority will often have an interest in encouraging development within its area. The options for the planning authority, which wants to give permission to a proposed development, therefore are to negotiate an agreement with the landowner or to exercise powers of compulsory acquisition and pay compensation.”

Put it simply, this judgement simply re-enforces the principles in Hall v Shoreham (and others since).?A planning obligation should have been used as the mechanism for requiring the North-South road through the development to be dedicated as publicly accessible highway, in agreement with the developer wishing to rely on the grant of planning permission, rather than simply via an (imposed) planning condition, which as now been judged to be unlawful, whether or not the original intention to provide connectivity to the wider NEV was understood by all parties.

Thanks to Colin Broadwood for directing me to the relevant Times Article from which I was able to review the judgement.

Kevin Kay , Ardent Consulting Engineers