Council loses Supreme Court appeal over whether community fund donation was material consideration for grant of planning permission

The Supreme Court has upheld a ruling that a district council acted unlawfully when, in granting planning permission for a wind turbine, it took into account a proposed donation to a local community fund.

The case of R (on the application of Wright) v Resilient Energy Severndale Ltd & Anor [2019] UKSC 53 concerned the grant of permission for change of use of land at a farm in Gloucestershire from agriculture to the erection of the turbine.

Resilient had proposed that the turbine would be built and run by a community benefit society which would make an annual donation to a local community fund.

Forest of Dean District Council took this donation into account when deciding to grant permission. In doing so, it had regard to government policy to encourage community-led wind turbine developments.

Mr Wright argued that the donation was not a material planning consideration and that Forest of Dean had acted unlawfully. He succeeded in the High Court and the Court of Appeal.

The Secretary of State for Housing, Communities and Local Government was given permission to intervene in support of Resilient and Forest of Dean’s appeal.

However, the Supreme Court has unanimously dismissed the appeal.

Giving the judgment of the court, Lord Sales said the community benefits proposed by Resilient did not satisfy the criteria for ‘material considerations’ set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578.

This three-fold test requires that the conditions imposed: (1) be for a planning purpose and not for any ulterior purpose; (2) fairly and reasonably relate to the development; and (3) must not be so unreasonable that no reasonable planning authority could have imposed them.

The community benefits therefore did not qualify as a material consideration under either the Town and Country Planning Act 1990 as amended or the Planning and Compulsory Purchase Act 2004.

Lord Sales said: “The benefits were not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general benefits to the community. Moreover, they did not fairly and reasonably relate to the development for which permission was sought.

“Resilient Severndale required planning permission for the carrying out of “development” of the land in question, as that term is defined in section 55(1) of the 1990 Act. The community benefits to be provided by Resilient Severndale did not affect the use of the land.

“Instead, they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold. This is so whether the development scheme is regarded as commercial and profit-making in nature, as Hickinbottom LJ thought it was (para 39), or as a purely community-run scheme to create community benefits.”

Lord Justice Sales said the statutory concept of a “material consideration” as interpreted by the courts did not vary according to government guidance and policy statements. On the other hand, a change in national policy can affect the issue of whether a decision satisfies the third limb of the Newbury test, by making it clear that a reasonable local planning authority can properly consider that a particular condition is justified in terms of planning policy.