The owners of a site comprising land within a wider area allocated by the local planning authority for strategic development obtained planning permission for a mixed commercial development. The permission’s conditions, issued pursuant to the planning authority’s powers under sections 70 and 72 of the Town and Country Planning Act 1990, included, by condition 39, a provision that the access roads within the site should 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”. The site was then purchased by the developer, which applied for a certificate under section 192 of the 1990 Act to confirm that construction and use of access roads within its site as private roads would be lawful. The planning authority, which took the view that access roads in the wider development should be public highways connected with each other and with the wider road network, refused the application. The developer appealed to the Secretary of State whose inspector granted its appeal and issued a lawful development certificate. On the planning authority’s application for statutory review of that decision under section 288 of the 1990 Act the judge quashed the inspector’s decision on the ground that the condition properly was to be understood as requiring the access roads to be constructed as public highways. The Court of Appeal allowed the developer’s appeal, set aside the judge’s order and restored the lawful development certificate.
On appeal by the planning authority—
Held, appeal dismissed. (1) The power conferred on local planning authorities by sections 70 and 72 of the Town and Country Planning Act 1990 to impose conditions, albeit on their face unlimited, fell to be interpreted in the context of the 1990 Act as a whole and, so interpreted, did not allow for a condition requiring a landowner to dedicate roads on its development site as public highways. Where a planning authority wished for a proposed development to accommodate public highways within the site, sections 106, 226 and 227 of the 1990 Act made specific provision for it to achieve such purpose by negotiating a planning obligation to that effect with the developer or by compulsory purchase with compensation payable to the developer. Given such provision, it would be unreasonable for a planning authority to seek to achieve that purpose by means of a unilaterally imposed planning condition which would require the developer to cede rights over its land without compensation. Accordingly, since it had not been open to the planning authority to impose a planning condition requiring the developer to dedicate the access roads as public highways, had condition 39 purported to do so it would have been ultra vires (paras 36–38, 44–48, 63, 65, 76).
(2) Condition 39, however, was not to be read as purporting to require the dedication of the access roads as public highways. Planning conditions were to be interpreted in a similar manner to other public documents, by asking what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the planning consent as whole. So read, condition 39 did no more than regulate the physical attributes of the roads to be constructed before the site was brought into use and as such was a valid condition. Accordingly, the developer’s construction and use of the access roads as private roads would be lawful (paras 66, 68–76).
Richard Harwood KC and Victoria Hutton (instructed by Director of Law and Democratic Services, Swindon Borough Council, Swindon) for the local planning authority.
Richard Humphreys KC (instructed by Jones Day) for the developer.
Richard Honey KC and Charles Streeten (instructed by Treasury Solicitor) for the Secretary of State for Levelling Up, Housing and Communities.