Judge overturns inspector's decision to allow industrial scheme's private 'highway'

A High Court judge has overturned a planning inspector's decision to back a developer which argued that it had a right to make newly-built access roads to an industrial scheme private.

London's Royal Courts of Justice
London's Royal Courts of Justice

DB Symmetry Limited obtained outline planning consent for the industrial, light industrial and warehousing development on land at Symmetry Park, South Marston, on the outskirts of Swindon, as long ago as June 2015.

The project was part of a wider development of the area to the east of the A419 comprising a mix of employment, retail and housing units, including two new villages.

The permission was subject to 50 conditions, one of which required the construction of access roads to the site, at DB Symmetry's expense.

The condition required those roads to be built in such a manner as to ensure that each unit was served by a "fully functional highway".

In June 2017, after work on the development commenced, DB Symmetry asked Swindon Borough Council to grant a certificate of lawfulness of proposed use or development in respect of the "formation and use of private access roads".

The developer's objective in seeking to render the access roads private was to defray part of the cost of constructing them by seeking contributions from other developers engaged in the wider scheme in return for granting licences to use the roads.

The council refused the application but, after DB Symmetry appealed, a certificate was granted by a planning inspector in November last year.

In challenging that decision, Swindon Council argued that the condition had not been complied with, in that the phrase "fully functional highway" meant that the public had to be afforded rights of way, including with vehicles, over the access roads.

The developer, however, argued that, taken in context, the condition imposed requirements concerning the manner of the access roads' construction. So long as they were capable of functioning as highways, there was no requirement that the public be granted free rights of way over them.

In ruling on the matter, Mrs Justice Andrews noted that clarity and precision in the drafting of planning conditions is vital, in that breach of them may in some circumstances amount to a criminal offence.

The word 'highway' was capable of bearing a number of different meanings, he said, both in law and in common parlance. However, nothing in those various definitions suggested that a highway could ever be a way over which members of the public do not have the right to pass and repass.

"The site was never intended to be self-contained as a cul-de-sac business estate; it was part of a wider major development, to be connected by the access roads to further development to the south and east," the judge told the High Court in London.

Swindon had "expressly intended" that the access roads should provide links to the wider development, and the word 'highway' as it appeared in the condition could not be interpreted as a "synonym for a road".

The judge concluded: "The council has made itself clear because it has used a word which anyone would naturally understand to mean a public road, and which is never used to mean a private one."

The fact that the access roads were intended to be public was "plain on the face of the permission".

The council's appeal was allowed and the certificate of lawfulness, granted by the inspector, was quashed.

Last month, a school that provides event day car parking for fans attending Wembley Stadium was left facing renewed planning enforcement action after a High Court judge ruled that an inspector had "failed to grapple" with key issues in the case regarding intensification of use.

In March, DB Symmetry had plans for a 215,000 square metre warehouse in Northamptonshire approved after a barrister warned the local authority that it would have "no prospects whatsoever" of successfully defending an appeal against an earlier refusal of the scheme over transport impact concerns.

Swindon Borough Council v Secretary of State for Housing, Communities and Local Government. Case Number: CO/5012/2018


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