Council foiled in claim for estate roads' public use

Estate roads on a light industrial development in Swindon should be restricted to private use because the local authority failed to specifically require their dedication as public highways, an inspector has ruled.

Two conditions on the original 2015 permission required approval of construction and layout details of the estate roads. These were subsequently submitted and approved and a legal agreement signed. The council encouraged the developers to seek technical approval for the estate roads under section 38 of the Highways Act 1980 so they could be maintained at public expense. However, there was no requirement for this in the wording of the conditions, the legal agreement or the original application drawings.

The council argued that restrictions on public use of what were supposed to be spine roads connecting through to other land to be developed would conflict with the conditions and specifically their reference to a "fully functioning highway". The landowners responded that there was no specific requirement in the planning permission, conditions or legal agreement to allow unfettered access over the estate roads or their transfer as dedicated public highway, citing R v Ashford Borough Council ex parte Shepway District Council [1999] and Trump International Golf Club Scotland Ltd v Scottish Ministers [2015].

The inspector supported their case, deeming the term "fully functioning highway" to refer to the manner of construction rather than use or legal status. She opined that the council should have been clearer in its wording if it wanted the access roads to be available for public use. To make that interpretation now would breach the rule that protects private property rights set by the courts in Hall & Co Ltd v Shoreham-by-Sea Urban District Council (1964), she held.

She concluded that there was no requirement in the planning permission and conditions to allow unfettered access over the estate roads and the appellant’s proposed restriction on their public use was lawful. She agreed to issue a lawful use certificate confirming this position.

Inspector: Wendy McKay; Written representations

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