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Supreme Court reinforces the principle that planning permissions cannot be bought or sold

On Tuesday, the Supreme Court handed down its judgment in the case of R (on the application of Wright) (Respondent) v Resilient Energy Severndale Ltd and Forest of Dean District Council (Appellants) [2019] UKSC 53.  The decision reinforces the long-standing legal principle that decisions on planning applications should be made based only on the planning considerations relevant to the current development, even if the consideration of ulterior purposes may lead to a greater public good, and that planning permissions cannot be bought.

Background to the case

The claimant, Mr Wright, had challenged the grant of planning permission by the Forest of Dean District Council for the erection of a 500kw wind turbine.  The applicant, Resilient Severndale, proposed that the wind turbine would be erected and run by a community benefit society.  The application included a promise that an annual donation would be made to a local community fund, based on 4% of the society’s turnover from the operation of the turbine over its projected life of 25 years. 

In the Committee reports, officers of the Council advised members that:

‘there is no formal agreement or arrangements with share-holder and or the local community in place for this particular proposal.  While the applicant’s intention is not in question there are no clear controls and/or enforcement measures that could ensure that these are delivered; no shareholder agreement or clear beneficiaries to any community trust fund. The proposal therefore falls outside of the planning remit.’

However, in August 2015 the planning committee, considered that the benefits to the community outweighed the impact on heritage assets and the impact on the landscape.  Members also determined that the community benefits could be ‘assured’ by a pre-commencement condition.

The Council granted permission on 30 September 2015 after the Secretary of State declined to exercise his power to call-in the application.

Condition 28 stated:

“The development is to be undertaken via a Community Benefit Society set up for the benefit of the community and registered with the Financial Conduct Authority under the Co-Operative and Community Benefit Societies Act 2014. Details of the Society number to be provided to the local planning authority prior to commencement of construction.”

The High Court’s decision

Mr Wright launched a judicial review of the grant of the planning permission, on the ground that the community benefit fund donation was not a material consideration for planning purposes.  He submitted that it did not serve a planning purpose, it was not related to land use, and it had no real connection to the proposed development.

At first instance, Dove J accepted those submissions and quashed the permission.  He applied what he took to be settled law regarding what constitutes a material consideration for the purposes of the planning statutes derived from a series of authorities, in particular the ‘Newbury Principles’ established by Newbury District Council v Secretary of State for the Environment [1981] AC 578 (“Newbury”).  In that case, Viscount Dilhorne concluded 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 appeal to the Court of Appeal was dismissed unanimously by Hickinbottom LJ, with which McFarlane LJ and Davis LJ agreeing.

The Supreme Court’s findings

Taking the matter to the Supreme Court, the Council and Resilient Severndale argued that the previous judgements erred in their approach to the question of what counts as a material consideration and that they should have found that the community benefits were a material consideration which the Committee could take account of in deciding to grant planning permission.

Counsel for the Secretary of State for Housing, Communities and Local Government (who was given permission to intervene) invited the court to “update Newbury to a modern and expanded understanding of planning purposes”.

Lord Sales’s concise judgment summarised the relevant authorities in Newbury, and others, and

he did not appear to have much difficulty in deciding that the community benefits did not satisfy the Newbury criteria and so did not qualify as a material consideration.   He rejected the Secretary of State’s submissions that the planning statutes had to be regarded as “always speaking” regarding what counts as a “material consideration”, and that this meant that the meaning of this concept should be updated in line with changing government policy.

Irrespective of the laudable aims of the Council and the applicant, the consequences of applying the Newbury criteria are that planning permission cannot be bought or sold.   This helps to promote public trust in and the integrity of the planning system.

What does this mean for future decisions?

The Courts will continue to shape what can be, as a matter of law, material considerations.  Local planning authorities will, as ever, be faced with difficult decisions regarding whether community benefits may be considered as part of the planning balance.  Applicants will also need to ensure that any offers of community benefits fall squarely within local and national policy and adhere to the Newbury principles.

For any more information please contact Duncan Moors from our Planning Team on: d.moors@ashfords.co.uk

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