Supreme Court Judgment on Material Planning Considerations

The Supreme Court yesterday gave judgment in the case of R (Wright) v Resilient Energy Sevendale Ltd and Forest of Dean District Council. A copy of the judgment can be found here.

The case concerned a judicial review of a grant of planning permission for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. The applicant for permission proposed that the turbine would be built and run by a community benefit society and that an annual donation would be made to a local community fund. The Council took this donation into account in granting planning permission and made the permission conditional on the development being undertaken by the community benefit society and the provision of the donation. In doing so, the Council had regard to government policy to encourage community-led wind turbine developments.

Mr Wright challenged the grant of permission on the grounds that the donation was not a material planning consideration and the Council had acted unlawfully by taking it into account. He succeeded at first instance and in the Court of Appeal.

The issue for the Supreme Court, on an appeal brought by the Council and Applicant, was whether the promise to provide a community fund donation qualified as a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 as amended (the “1990 Act”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the “2004 Act”).

The Supreme Court has ruled that it did not. The money offered by the Applicant was not a means of pursuing a proper planning purpose, but for the ulterior purpose of providing general, and unrelated, community benefits. The fund did not fairly relate to the development for which permission was sought

The main headlines are:

  1. A ‘material consideration’ for the purposes of section 70(2) and 38(6) means material to the proposed development;
  2. Whether something is material is to be judged against the Newbury criteria. In other words (a) it must be for a planning purpose, (b) does it must fairly and reasonable relate to the development, and (c) it must not be Wednesbury unreasonable;
  3. A ‘planning purpose’ consideration must relate to the use of land;
  4. The Newbury criteria protect against the buying and selling of planning permissions, which is important to protect both landowners and the public interest;
  5. Changes in Government policy or guidance cannot change whether a consideration is a material consideration.