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Gael Hardie is an associate within the Planning and Infrastructure team at CMS. Gael specialises in all planning matters for a wide range of residential and commercial property developers, leading house builders, property companies and investment funds. In this post, Gael comments upon the decision handed down by the UK Supreme Court last month in the matter of R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council [2019] UKSC 53: 

In R (Wright) v Resilient Energy Severndale Ltd and Forest Dean District Council, which was handed down on 20 November 2019, the Supreme Court has confirmed that the materiality of a consideration in a planning decision will depend on whether the consideration serves a purpose which relates to the use of the land.

On the facts, it held that the promise of an annual donation to a local community fund was an immaterial consideration in planning terms because it was unconnected to the use of the land in question. It was in effect an attempt to buy planning permission.

This decision reaffirms the established practice in wind farm applications, whereby developers emphasise that community benefit contributions are not considered to be material to the planning process.

Background

The first appellant (“Resilient Severndale”) applied for the change of use of land at Severndale Farm, from agriculture to the erection of a single community scale 500kW wind turbine for the generation of electricity.

In its application, 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 (the “Community Fund Donation”).

Forest of Dean District Council (the “LPA”) duly granted the permission. In arriving at its decision, the LPA expressly considered the Community Fund Donation and imposed a condition that the development be undertaken by a community benefit society with the Community Fund Donation as part of the scheme.

Mr Wright (a local resident) challenged the grant of planning permission on the grounds that the promised Community Fund Donation was not a material planning consideration pursuant. Mr Wright succeeded before Dove J at first instance, and following which, the Court of Appeal dismissed an appeal by Resilient Severndale and the Council.

The decision

The Supreme Court unanimously dismissed the appeal. Lord Sales, delivering the unanimous judgment, held that the LPA had relied on proposed payments which do not qualify as a material consideration.

Lord Sales rejected the arguments of the appellants who argued that the planning statutes had to be regarded as “always speaking” with regards to what counts as a “material consideration”. It was argued that the concept of “material consideration” should be updated in line with changing government policy. Lord Sales did not agree, concluding that what constitutes a “material consideration” is in no doubt and updating the established meaning of the term would be inappropriate. Central to the consideration was the longstanding Newbury case.

Interestingly, while not a party, the Secretary of State for Housing, Communities and Local Government was given permission to intervene. Arguments were made in support of the appellants’ submissions by inviting the court to “update Newbury to a modern and expanded understanding of planning purposes”.

Lord Sales carefully examined the case law, demonstrating firstly that a material consideration has come to mean a consideration that serves a planning purpose and secondly that a planning purpose is a purpose which relates to the character of the use of the land. He reaffirmed the longstanding principle that planning permission cannot be bought or sold. The promise of a financial contribution which does not relate to the character of the use of the land will never be material in planning terms. This statement of principle is clearly established.