A Planning Condition Requiring Dedication of Land for Public Use is Unlawful

On 16 October 2020, the English Court of Appeal delivered judgment in DB Symmetry v Swindon Borough Council & Another, confirming that the principle established in the "landmark case" of Hall & Co Ltd v Shoreham by Sea Urban DC ("Hall") is still good law. Hall established that a planning condition (as opposed to a planning obligation) may not lawfully require a developer to dedicate land for highways purposes, without the payment of compensation.

In this case, Swindon Borough Council ("Swindon") sought to argue that a condition required the dedication by the landowner of rights of passage for the public over roads to be constructed as part of a development. In particular, Swindon 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. DB Symmetry Ltd (the developer) argued (among other things) that this was unlawful, pursuant to the principle established in Hall, and if Swindon's interpretation of the planning condition was correct, this would invalidate the planning permission. Given this draconian result, DB Symmetry Ltd argued that its interpretation of the planning condition was to be preferred; namely, that the planning condition only related to the construction of the roads and not the dedication of them for public use.

In its judgment, the English Court of Appeal:

• Found that Hall has never been overruled or disapproved for what it decided and established a "recognised principle" which was binding on the Court;
• Held that the power to impose conditions is clearly narrower than the power to enter into planning agreements and obligations, and recognised the direction of travel in the planning legislation has been to encourage a wider use of planning agreements and obligations, while leaving the scope of the power to impose conditions untouched;
• Identified four possible public law bases for the unlawfulness of such a condition, namely: (i) being outside the scope of the power because it required the grant of rights over land rather than merely regulating the use of land; (ii) being a misuse of a power to achieve an objective that the power was not designed to secure; (iii) being irrational in the public law sense; or (iv) being disproportionate;
• Found that DB Symmetry Ltd's interpretation of the condition, which avoided any invalidity and for other reasons, is to be preferred.

Jones Day represented DB Symmetry Ltd, the successful appellant, in this matter.

Leonie Ghirardi, an associate in the London Office, and John Mitchell, also in the London Office, assisted with the appeal.