2 December 2019

Supreme Court rules on “buying” planning permission

R (on the application of Wright) (Respondent) v Resilient Energy Severndale Ltd and Forest of Dean District Council (Appellants),

In a recent judgement, the Supreme Court has upheld a ruling quashing a planning permission for a wind turbine on the basis that a “community fund donation” does not qualify as a material planning consideration.

Background

As part of an application for planning permission for a wind turbine, the developer, Resilient Severndale, proposed a community fund donation be made to the local community every year, at 4% of the turnover generated by the operation of the turbine.

In their determination of the application, Forest of Dean District Council expressly took into account this donation as a material planning consideration, and proceeded to grant planning permission.

A local resident subsequently challenged this grant in the High Court, on the grounds that the donation was not a material planning consideration, and the Council had acted unlawfully in taking it into account as such in their decision to grant. The High Court agreed, and quashed the permission. The Court of Appeal upheld the decision, and Resilient and the Council appealed to the Supreme Court.

The Newbury criteria

In a unanimous judgement given by Lord Sales, the Supreme Court rejected the invitation by the appellant to “update Newbury to a modern and expanded understanding of planning purposes”.

The Newbury criteria for identifying material considerations, as set out in Newbury District Council v Secretary of State for the Environment [1981], require that:

“… the conditions imposed must be for a planning purpose and not for any ulterior one, and … they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them …”

The Court noted that, as a consequence of the Newbury criteria, it has long been established that planning permission cannot be bought or sold. This “principled approach” to identifying material considerations prevents planning authorities requiring payments or benefits which do not have sufficient connection with the proposed use of the land, and conversely prevents developers offering inducements to planning authorities to grant permission for developments are unacceptable on the merits of the development itself. 

The Court held that the provision of the community fund donation did not satisfy the Newbury criteria, as it was proffered as a general inducement to the Council to grant the permission, and “constituted a method of seeking to buy the permission sought”.

The Court acknowledged various government policy support for community benefit packages. It noted however that such policies are clear they should be considered separately from the planning process, and are not relevant in making a development acceptable in planning terms.

The appellants’ argument that the concept of material considerations should be updated in line with changing government policy was roundly rejected by the Court. It held that the meaning of material consideration in the relevant statute is “not in doubt and updating the established meaning of the term is neither required not appropriate”.

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