DB Symmetry Ltd & Anor v Swindon Borough Council

Factual and Procedural Background

The dispute concerns a large, mixed-use development site (“the Site”) forming part of a strategic plan to deliver some 8,000 homes and related infrastructure on the outskirts of The City. In 2015 the local planning authority (“Appellant”) granted outline planning permission subject to 50 conditions. A key element was the construction of two internal roads – a north-south access road and an east-west spine road – intended to connect the Site to adjoining parcels within the wider allocation.

The permission was accompanied by a section 106 agreement that, among other things, obliged the developer (“Company A”) to build the two roads to base-course level, but the agreement did not require dedication of those roads as public highways. The Appellant later asserted that planning condition 39 nevertheless compelled such dedication. Company A sought a certificate of lawfulness stating that the roads could lawfully remain private. The Appellant refused; Company A appealed; and a Planning Inspector allowed the appeal, finding that condition 39 regulated construction quality and timing only.

The Appellant successfully challenged the Inspector’s decision in the High Court, which construed condition 39 as requiring dedication. The Court of Appeal reversed, restoring the Inspector’s view and holding that a planning condition cannot compel dedication without compensation. The Appellant obtained permission to appeal to the Supreme Court (“the Court”).

Legal Issues Presented

1. Whether, as a matter of law, a planning authority can use a condition attached to planning permission to require a developer to dedicate land as a public highway without compensation.
2. Whether condition 39 in this permission, properly construed, in fact imposes such an obligation or is confined to construction standards and timing.

Arguments of the Parties

Appellant's Arguments

• Condition 39, read in context, obliges Company A to dedicate the internal roads as public highways, thereby ensuring connectivity across the wider allocation.
• Such a condition is lawful because it serves a planning purpose, is reasonably related to the development, and is not irrational.
• If Hall v Shoreham is authority to the contrary, it was wrongly decided or is distinguishable.

Company A's Arguments

• Condition 39 addresses only the physical construction and timing of the roads; it says nothing about legal status or dedication.
• Under Hall v Shoreham, a planning condition cannot compel dedication without compensation; the correct mechanism would have been a section 106 obligation or compulsory purchase.
• The Inspector’s construction is the only lawful one and is consistent with longstanding government guidance against requiring land cession via conditions.

Government Agency's Arguments

• Adopted Company A’s submissions and added that reading the condition as a dedication requirement would render it unlawful, triggering the “validation principle” that favours an interpretation preserving legality.

Table of Precedents Cited

Court's Reasoning and Analysis

Step 1 – Scope of planning conditions. Reviewing sections 70 and 72 of the Town and Country Planning Act 1990 and case-law, the Court reaffirmed that conditions must (a) serve a planning purpose, (b) fairly relate to the development, and (c) not be so unreasonable as to be Wednesbury unlawful. Historic authority (Hall v Shoreham) demonstrates that compelling dedication of land without compensation breaches those limits.

Step 2 – Principle of legality. Unless Parliament has clearly authorised deprivation of property without compensation, such a power cannot be inferred. No clear statutory wording empowers a planning authority to impose dedication through conditions; where dedication is required it must be secured by voluntary obligation or compulsory purchase.

Step 3 – Distinction between conditions and obligations. A section 106 planning obligation is entered voluntarily and may lawfully secure dedication. This conceptual difference justifies allowing dedication via agreement while prohibiting compulsion via condition.

Step 4 – Interpretation of condition 39. Applying ordinary meaning, context, and surrounding conditions, the Court found:

• No express reference to dedication or public rights of way.
• Phrases such as “fully functional highway” relate to construction standard, not legal status.
• The reason for the condition focuses on safe access to the public highway, implying the new roads are internal.
• Lack of any plan defining land to be dedicated, unlike the section 106 agreement for A420 improvements.
• Placed among other construction-oriented conditions.
• A reasonable reader, aware of long-standing government guidance and Hall v Shoreham, would not read silent wording as effecting dedication.

Step 5 – Consequence. Because the condition does not and could not lawfully impose dedication, the Inspector and Court of Appeal were correct to treat it as addressing construction only.

Holding and Implications

Holding: The appeal is DISMISSED. A planning condition cannot lawfully compel a developer to dedicate land as a public highway without compensation, and condition 39, properly construed, imposes no such requirement.

Implications: Planning authorities must use consensual section 106 obligations or statutory acquisition powers, not unilateral conditions, to secure public highway rights over development land. The decision re-affirms decades of guidance and preserves certainty for developers and authorities regarding the limits of planning conditions; no new precedent is set, but a foundational one is confirmed.