The Supreme Court has ruled that local authorities cannot impose planning conditions which require land to be dedicated as public highway. The condition at issue in this case, imposed by Swindon Borough Council, is as follows:

"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 fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use."

It was not disputed that the local authority could have achieved the dedication of the access roads as public highway pursuant to a s106 agreement - a well established method for achieving this outcome. The point of dispute in this case was whether a planning condition could be used to achieve this same end result. 

This case serves a useful reminder of the 'fundamental conceptual difference' between a unilaterally imposed planning condition and a planning obligation secured via a s106 agreement and the limitations on what a planning condition can require. The judgment makes clear that it is not lawful for a local authority to impose a planning condition requiring public rights to be granted over a development site. The unanimous judgment further had regard to the established policy position that a planning condition should not be imposed which requires the giving up of land, in this case to be public highway. 

The condition as set out above was held to be a valid condition but one which does not require land to be dedicated as highway. The Court held that condition 39 does not purport to achieve this, the local authority would be ultra vires in requiring dedication of land via a planning condition. 

In light of this decision, regard should be had to equivalent conditions both on existing planning permissions and for developments coming forward which include the provision of new site access. Where the intention is for land to be dedicated as public highway, it is important to ensure this is secured as a planning obligation with associated highways agreements in place as required. 

DB Symmetry Ltd and another (Respondents) v Swindon Borough Council (Appellant)