When is a highway not a highway?
Michael Orlik comments on an appeal ruling giving guidance on how to save a planning permission with a problematical condition
The local development plan for Swindon provides for a major extension of the town on its north eastern outskirts to the south of the A420 called the New Eastern Villages. A strategic allocation has been made to deliver about 8,000 houses and 40 hectares of employment land and associated uses.
In June 2015, Swindon Borough Council granted outline planning permission to a company called DB Symmetry for the first part of the development, for employment uses, new landscaping and a junction to the A420.
The developer’s design and access statement stated that it had been amended “to show highways extending to the site boundaries”. Condition 39 of the Planning Permission was as follows:
“Roads - 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 into use.
Reason: to ensure that the development is served by an adequate means of access to the public highway in the interest of highway safety”.
At first sight, it seems that the condition means that the roads to be constructed should be highways.
In 2017, the developer applied to the council for a certificate that the use of the roads as private access roads would be lawful. The council refused a certificate and the developer appealed.
In 2018, an experienced planning inspector allowed the appeal and certified that the use of the access roads for private use only would be lawful. The council succeeded in its application to the High Court to quash the inspector’s decision. The developer then appealed to the Court of Appeal.
The Court of Appeal followed the clear precedent in Hall & Co Limited v Shoreham by Sea Urban District Council  1 WLR 240 in allowing the appeal (DB Symmetry Ltd v Swindon Borough Council & Anor  EWCA Civ 1331). In the Hall case, an application had been made for planning permission for industrial development adjoining a busy main road which was already overloaded.
The council granted planning permission subject to a condition requiring the developer to construct an ancillary road over the frontage of its site and to “give right of passage” over it.
The appeal court held that this condition was unlawful because it required the developer to dedicate a road to the public as a highway without compensation. It was held to be unlawful even though it did not require the transfer of any land.
The case has been followed and applied in subsequent cases and the Court of Appeal held that it is still good law.
A further issue
Its decision to follow Hall immediately raised the problem of whether the condition imposed by the council did actually require the roads to be dedicated as highways. If that was the correct interpretation of the condition, it might not be severable and the whole permission would have to be quashed.
In Kent County Council v Kingsway Investments (Kent) Limited  AC 72, the Court of Appeal held that if invalid conditions are unimportant, then the permission can endure. If the conditions were part of the structural permission, then the permission would fall with it. The result in the Hall case had been that the whole permission had to be quashed.
The court applied the validity principle in construing condition 39. That principle proceeds on the premise that the parties would have intended the permission to be valid. If the condition in issue was capable of having two meanings, one of which would result in it being void and the other which would result in it being valid, the latter should be preferred (Tillman v Egon Zehnder Limited  UKSC 38).
In that case, Lord Wilson said that it is not necessary to require “a measure of equal plausibility” of the rival meanings. As long as the alternative construction was realistic it could be applied.
Condition 39 did not expressly require dedication ; it was headed “Roads”; the terminology in the condition was ambiguous; it made reference to serving “a necessary highway purpose” and to “a fully functional highway”. The reason given for imposing the condition was to provide adequate means of access “to the public highway”.
Accordingly, the court agreed with the planning inspector’s conclusion: “In my view, condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public.”
In the result, the condition was valid and the planning permission could stand. It was perhaps fortunate that the drafter of the condition used confusing terminology. All highways are open to the public. Some highways are privately maintainable and some highways are maintainable by no one; but every highway is open to the public.
It is confusing and tautological to place the adjective ‘public’ before ‘highway’.
The Court of Appeal mentioned another matter in favour of allowing the appeal. It said it should give some weight to the expertise of an experienced specialist planning inspector. The judgment restated the principle that the courts should be wary of undue intervention in policy judgements within the areas of specialist competence of expert tribunals.
A local planning authority cannot achieve the compulsory dedication of a highway through the imposition of a planning condition, or the transfer of land for a road or a public open space by that means. It is well recognised, however, as the Court of Appeal pointed out, that those objects can be achieved through the developer entering into an agreement under section 106 of the Town and Country Planning Act 1990 or section 38 of the Highways Act 1980 to provide a highway.
If the provision of a new highway is necessary in order to serve new development, and a developer is not prepared to enter into an agreement to provide such a highway, the local planning authority may have good reason for refusing the planning application.
The application by DB Symmetry was for planning permission for the first part of a major development. It envisaged a spine road which was to be a dual carriageway, including footpaths and cycleways on both sides, of a width between 59m and 61m. The report to the planning committee said that the site was “a key gateway” to the New Eastern Villages.
It was understandable that the developer would try to keep such an expensive road private so it could recover some part of the cost from the developers, who would take on later stages of the development served by the spine road.
Another reason for keeping roads private, particularly on industrial estates, can be to enable gates to be put on the roads and other security measures taken, so that valuable industrial premises can be protected from easy access at night time and weekends.
The case does not make new law. The court did restate the important principle that the power to impose conditions on the grant of planning permission should not be interpreted as derogating from the rights of the owner to exercise their property rights.
It has also given valuable guidance on how to save a planning permission where a condition is problematical.
Michael Orlik is a specialist in highways and rights of way. He is a consultant at Lodders Solicitors lodders.co.uk