Planning consent and community benefits

Wind turbines can evoke strong feelings. To some they are vital and eye-catching sources of renewable energy. To others they are simply bird- and insect-destroying eyesores. But in granting planning consent, can a local authority have regard to a proposed annual donation to a local community fund? Would this be a material planning consideration? No, said the Supreme Court on 20 November in R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council [2019] UKSC 53. Lord Sales gave the judgment with which Lady Hale, Lord Reed, Lord Lloyd-Jones and Lord Thomas agreed. 

The case concerned a challenge by a local resident (Mr Wright) to a grant of planning consent by Forest Dean District Council (the council) to Resilient Energy Severndale Ltd (Resilient) for the change of use of land from agriculture to the erection of a single electricity-generating wind turbine. 

Resilient proposed that the turbine be erected and run by a community benefit society (CBS) and an annual donation would be made to a local community fund, based on 4% of the CBS turnover over its projected 25-year life. In granting permission, the council imposed a condition that the development be undertaken by a CBS with the community fund donation as part of the scheme. 

Wright’s contention was that this was unlawful since the proposed donation was not a material planning consideration. He succeeded at first instance and in the Court of Appeal; Resilient and the council appealed to the Supreme Court.

As Lord Sales indicated, the issue on the appeal was whether the promise to provide a community fund donation qualifies as a ‘material consideration’ for the purposes of section 70(2) of the Town and Country Planning Act 1990 and other material legislative provisions. Section 70(1) of the 1990 act empowers a local planning authority to grant permission either unconditionally or subject to such conditions as it thinks fit. Section 70(2) provides that in dealing with planning consent applications an authority shall have regard (among other things) to material development plan provisions, material local finance considerations and any other material considerations.

The court noted that the land in question is agricultural and is not designated for development in the area development plan. The proposed development was therefore not in accordance with the development plan. As to local renewable energy development, Government Planning Policy Guidance (reference ID: 5-004-20140306) indicates (among other things) that ‘local planning authorities may wish to establish policies which give positive weight to renewable and low carbon energy initiatives which have clear evidence of local community involvement and leadership’.

In October 2014 the Department of Energy & Climate Change (DECC) published general guidance entitled  Community Benefits from Onshore Wind Developments: Best Practice Guidance for England. This indicated that ‘community benefits can bring tangible rewards to communities which host wind projects, over and above the wider economic, energy security and environmental benefits’. These may include: ‘community benefit funds – voluntary monetary payments from an onshore wind developer to the community, usually provided via an annual cash sum’, and benefits in kind. 

However, the DECC guidance also warned that ‘planning legislation prevents local planning authorities from specifically seeking developer contributions where they are not considered necessary to make the development acceptable in planning terms’. The court agreed and noted that whether something is a material consideration is a question of law. Statute cannot therefore be overridden or diluted by general policies laid down by central government nor by policies adopted by local planning authorities.

Lord Sales cited the leading case of Newbury District Council v Secretary of State for the Environment [1981] AC 578, where Viscount Dilhorne had said that planning conditions ‘must be for a planning purpose and not for any ulterior one, and that 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’. In the court’s view: ‘The relevance of the Newbury criteria to determine the ambit of “material considerations”… is well established and is not in contention on this appeal.’ And: ‘It has long been recognised that a consequence of this approach of relying on the Newbury criteria to identify “material considerations” is that planning permission cannot be bought or sold.’

Consequently, in the instant case the community benefits promised by Resilient failed to satisfy the Newbury criteria and therefore did not qualify as a material consideration. The benefits were not to pursue any proper planning purpose, but were for the ulterior aim of providing general benefits to the community. They were proffered as a general inducement to the council to grant planning permission and were a method of seeking to buy the permission. This breached the principle that planning permission cannot be bought or sold.

The court rejected a submission that what counts as a ‘material consideration’ should be updated in line with changing government policy. Lord Sales indicated that the meaning of ‘material consideration’ in planning statutes is not in doubt and updating the established meaning is neither required nor appropriate: ‘The interpretation given to that statutory term by the courts provides a clear meaning which is principled and stable over time.’

The appeal by the developer and the council was therefore dismissed. Lord Sales said he would resist the invitation on behalf of the secretary of state to ‘update Newbury’ and found that in granting planning consent the council had relied on matters which were not ‘material considerations’. The permission was therefore quashed.

Nicholas Dobson writes on local authority law and governance