The Supreme Court has ruled that it is unlawful for a planning authority to impose a condition on the grant of planning permission requiring the developer to dedicate land within the development as public highway. Instead, any requirement for dedication should be in a s106 obligation.
The case of DB Symmetry Ltd and another v Swindon Borough Council 2022 UKSC [33] involved a disputed positive condition requiring dedication (although, as the condition was badly worded, its precise effect was in dispute) so the question of whether a negative Grampian-style condition would also be unlawful was not dealt with by the Court. However there must be some doubt on that point. Part of the Court’s reasoning was that there is a distinction to be drawn between requiring dedication in a condition (which is imposed on the applicant for permission) and a s106 obligation (to which the applicant agrees). Leaving aside the obvious point that the if the applicant will not agree to the obligations the LPA requires he risks not getting his planning permission, the Court’s reasoning seems to indicate that ANY condition requiring dedication could be deemed unlawful. In light of the judgement, we would advise our clients (especially our local authority clients) to always ensure requirements to dedicate land as highway are contained in a s106 obligation rather than a condition.
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