DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33 (14 December 2022)
Citation:DB Symmetry Ltd & Anor v Swindon Borough Council [2022] UKSC 33 (14 December 2022).
Rule of thumb:If builders are given planning permission to build a new major housing development, and as part of the plans they are expected to build a major highway, do they need to build this major in order to get a competition certificate for the development? No, not if the Council has not used the proper public planning forms to approve the highway, and builders can get a competition certificate for the development without having to build the new highway.
Background facts:
The facts of this case were very simple. DB Symmetry were granted planning permission by Swindon County Council to build a large new private housing development, however, under these Council plan drawings, DB Symmetry were expected to build a full-blown highway for access to it as part of the deal.
Parties argued
However, DB Symmetry refused to build this highway, arguing that Swindon County Council did not have the right to order them to do so under the planning permission forms and approvals that had been granted, namely that other forms and procedures had to be followed to get a builder to construct a full blown highway/infrastructure feature as was drawn in the plans, meaning that this part of the plan from Swindon Council was invalid.
Judgment:
The Court upheld the arguments of DB Symmetry as being technically correct. The Court affirmed that in order for a builder to be legally bound by the Council to build full public infrastructure features, a different planning permission from the one invoked in this case had to be issued. The Court affirmed that DB Symmetry did not have to build the highway infrastructure that Swindon County Council were looking for in order for their new development to be given a competition certificate so that the houses could be sold.
Ratio-decidendi:
‘76. There is no doubt that in this case Swindon BC would have been wholly justified in terms of planning policy in requiring the owner of the site to dedicate the access roads within the site as a highway extending to the boundaries of the site to enable the public to have rights of access to and from the other proposed development sites in the NEV south of the A420. It could have done so by means of a section 106 agreement, but for reasons unknown it did not do so. Its attempt after the event to rely on condition 39 fails for two reasons. First, it would have been ultra vires to require the dedication of the access roads as a highway by means of a planning condition. Secondly, on a proper construction condition 39 did not purport to do so’, Lord Hodge
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.