UK Supreme Court Confirms Condition Requiring Dedication for Public Highway Use Is Unlawful

On 14 December, the UK Supreme Court in DB Symmetry Ltd and another v Swindon Borough Council upheld the decision of the Court of Appeal that a planning condition requiring dedication of land for public highway use is unlawful.

The Supreme Court dismissed the appeal by Swindon Borough Council ("SBC") and affirmed what it referred to as a "foundational rule of the planning system" that a planning condition which requires a landowner to dedicate roads on its development as public highways is unlawful. That principle was established in 1964 by the House of Lords in Hall & Co Ltd v Shoreham-by-Sea Urban District Council ("Hall").

SBC challenged this orthodoxy, arguing that condition 39 required the dedication by the developer, DB Symmetry Ltd ("DBS"), of public rights of way over access roads to be constructed on its development. SBC argued that requiring this dedication without compensation was lawful, and a public authority may lawfully use powers which do not involve the payment of compensation in preference to powers that do.

DBS argued that this was unlawful as contrary to Hall. It was also inconsistent with statute and government guidance, which drew a clear distinction between what a planning authority could require via a planning condition, versus a planning obligation or compulsory acquisition. It was unchallenged that SBC could have secured public rights of way over the access roads using a planning obligation. However, SBC had failed to do so.

The Supreme Court:

  • Affirmed the principle in Hall, holding that it had influenced not only government policy but also the understanding of the role of planning conditions among operators in the planning system for decades; 
  • Stated that there are other recognised legal mechanisms whereby a planning authority can secure dedication of land for public use, namely compulsory acquisition or a planning obligation. A planning condition cannot be used to achieve this purpose. There is a fundamental conceptual difference between unilaterally imposed planning conditions and planning obligations to which a developer can be subjected to only by its voluntary act; and
  • Even if it had been lawful to require dedication of land for public use by condition, the Supreme Court agreed with the developer's interpretation that condition 39 was concerned with the quality and timing of construction of the access roads, not their dedication to public use. 

Jones Day represented DBS, the successful developer, in this matter. 

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