Planning permissions cannot be bought

In R (on the application of Wright) v Resilient Energy Severndale Ltd and another [2019] UKSC 53; [2019] EGLR 3, Forest of Dean District Council granted planning permission for a wind turbine on a farm in Gloucestershire. In its planning application, the applicant, Resilient, proposed that the turbine be run by a community benefit society and confirmed that an annual donation to a local community fund would be made. This offer reflects government guidance which encourages community-led wind turbine developments and “voluntary monetary payments”. However, when determining the planning application, the council took the donation into account as a “material consideration” even though the government guidance is clear that such benefits are not relevant when deciding whether permission should be granted. The council attached a condition to the planning permission requiring construction of the turbine by the community benefit society and the payment of the annual donation.  Peter Wright challenged the grant of permission, arguing that the community donation was not a lawful material planning consideration and that by taking it into account when determining the planning application, the council had acted unlawfully.  What are “material considerations”? The key issue at first instance for the High Court ([2016] EWHC 1349 (Admin); [2016] PLSCS 165) was whether the promise to provide a community donation is a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 (the 1990 Act) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act).  Section 70(2) says that in dealing with an application for planning permission, a council shall have regard to the development plan and (among other things), “any other material considerations”. Section 38(6) says that the determination of the planning application must be made in accordance with the development plan unless material considerations indicate otherwise. As the site was being used for agricultural use and was not allocated for development in the development plan, the proposed development did not accord with the development plan. Wright argued that the donation was not capable of being a material consideration so should not have been taken into account.  Dove J agreed with Wright. He based his judgment on the principles in Newbury District Council v Secretary of State for the Environment [1981] 1 AC 578 and other relevant case law on what constitutes a material consideration. He made an order quashing the permission.  Resilient and the council appealed unsuccessfully to the Court of Appeal ([2017] EWCA Civ 2102; [2017] PLSCS 221) and, not yet ready to admit defeat, to the Supreme Court. The Newbury principles upheld In the Supreme Court, even submissions in support of the appeal from the secretary of state were not enough to get it through, and the Supreme Court also dismissed the appeal upholding the judgments of the lower courts. All three courts agreed that principles in Newbury were determinative of the issue.  These require that all conditions imposed on a planning permission: (1) are for a planning purpose and not for any ulterior purpose;  (2) fairly and reasonably relate to the development; and  (3) are not so unreasonable that no reasonable planning authority could have imposed them.  The community benefits promised by Resilient did not satisfy the Newbury criteria and therefore did not qualify as a material consideration under either the 1990 Act or the 2004 Act as: The benefits were not proposed to pursue a proper planning purpose, but rather for the ulterior purpose of providing general benefits to the community; and They did not fairly and reasonably relate to the development for which permission was sought. The community benefits did not affect the use of the land but were instead proffered as a general inducement to the council to grant planning permission, in breach of the principle that planning permission cannot be bought or sold. The court made the point that the statutory concept of a “material consideration” does not vary according to changes in government guidance and policy statements. However, a change in national policy can affect the third limb in Newbury (reasonableness), if it makes it clear that a reasonable local planning authority can properly consider that a particular condition is justified in terms of planning policy. Not just hot air The case serves as an important reminder that planning permissions cannot be bought or sold. The Newbury principles are also reflected in Regulation 122 of the Community Infrastructure Regulations 2010, which provides a statutory test for section 106 planning obligations to ensure that these are not used to “buy” planning permissions, and also to prevent local authorities from extracting unlawful payments and/or other benefits from developers.  It is not always obvious when planning decisions (which may be consistent with government guidance) are unlawful. The results, though, can be severe, and so it is very much in the developer’s interest to keep close to the determination process so that outcomes like this can be avoided. A carefully prepared committee report could have made all the difference. Key points A recent Supreme Court wind turbine case is a stark reminder to developers of the need to monitor how councils determine their planning applications If the council takes a matter into account that it shouldn’t (such as a charity donation), it can result in the “quashing” (effectively, the tearing up) of the planning permission, meaning that the developer must start the process all over again What can seem like a generous gesture to appease locals can backfire dramatically Hannah Quarterman is head of planning and Kathryn Hampton is a senior knowledge lawyer at Hogan Lovells International LLP