Legal Viewpoint: Ensuring a reasonable reading of permissions

The need for clear drafting of planning conditions, as well as for common sense in interpreting their intention, was emphasised in a High Court ruling last month involving the status of estate roads on a light industrial development in Swindon.

In June 2017, DB Symmetry Ltd applied for a lawful development certificate seeking clarity on the lawfulness of "the formation and use of private access roads as private access roads", so that roads on their development could be used "for private use with the permission of the estate owners and management company only".

The certificate was refused on the grounds that it would be contrary to a condition on the permission requiring the roads "be constructed in such a manner as to ensure that each unit is served by fully functioning highway". On appeal last autumn, an inspector agreed with the claimants’ assertion that the condition did not mean that the roads had to be public highways. She found that, because the roads were privately owned, there was no general right of passage over them. She allowed the appeal and granted the certificate.

The court, however, further considered the way permissions should be interpreted. In a phrase that will resonate in planners’ ears, Mrs Justice Andrews stated that "the court will ask itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the planning permission as a whole".

The judge was concerned with the definition of the word "highway". In the conditions, the permission referred to a masterplan for the surrounding area and road network. She made it clear that it would be nonsensical for the public not to be able to use the roads "as of right". She highlighted the intention of the masterplan for the associated link and access roads as being one of accessibility and integration.

The judge asserted that it was clearly, obviously and unambiguously the intention of the permission that the roads should be available for public use. The fact that the condition and a section 106 agreement referred only to the method and standard of construction did not provide the ability to restrict or control access to them by some other method, she held.

The impetus behind the application involved funding. If the roads remained privately owned and managed, contributions could be sought from developers of surrounding sites shown on the masterplan for a portion of construction and maintenance expenses, in return for licences to use them. While the claimants made no complaint about having to fund the roads, the question of motive remains.

That is not the essence of the decision, however. The judge merely sought to clarify the position with regard to interpretation. She held that words should be interpreted in their "normal sense" and a permission given its obvious intention. The certificate was set aside. This case is one in a line of recent judgments which seek to uncomplicate decision-making. However, it also once again highlights the importance of drafting conditions clearly and concisely, so as to avoid any ambiguity.

Swindon Borough Council v Secretary of State for Housing, Communities and Local Government and DB Symmetry Ltd; Date: 1 July 2019; Ref: [2019] EWHC 1677 (Admin)

Kate Jardine is senior associate, planning, at Thomson Snell & Passmore

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