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On appeal from: [2017] EWCA Civ 2102

The case concerns a challenge by way of judicial review by the respondent, to the grant of planning permission by the second appellant to the first appellant for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. In its application for planning permission, the appellant 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. The Respondent 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 on the appeal is whether the promise to provide a community fund donation qualifies as a “material consideration” for the purposes of Town and Country Planning Act 1990, s 70(2) as amended and the Planning and Compulsory Purchase Act 2004, s 38(6).

Held: The Supreme Court unanimously dismisses the appeal. Planning permission is required for development of land, which includes the making of any material change in use of land (under the 1990 Act). The planning authority must have regard to the development plan and any other considerations material to the proposed change of use (s 70(2) of the 1990 Act and s  38(6) of the 2004 Act).

A three-fold test for “material considerations” is found in Newbury District Council v Secretary of State for the Environment [1981] AC 578. This requires that the conditions imposed: (1) be for a planning purpose and not for any ulterior purpose; (2) fairly and reasonably relate to the development; and (3) must not be so unreasonable that no reasonable planning authority could have imposed them. It is logical to equate the ambit of “material considerations” with the scope of the power to impose planning conditions, because if the planning authority has the power to impose a condition it follows that it could treat the imposition of that condition as a material factor in favour of granting permission. The relevance of the Newbury criteria to determine the ambit of “material considerations” in the 1990 and 2004 Acts is well established and is not in contention on this appeal.

In the present case, 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 or the 2004 Act. The benefits were not proposed to pursue a proper planning purpose, but rather for the ulterior purpose of providing general benefits to the community. 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.

For judgment, please download:  [2019] UKSC 53
For Court’s Press Summary, please download: Court’s Pres Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website  (Morning 22 July), (Afternoon 22 July), (Morning 23 July).