The Supreme Court has confirmed that a proposed donation to a community fund equated to an attempt to buy planning permission

On 20 November 2019, 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.

Forest of Dean District Council granted planning permission for the erection of a 500kw wind turbine in September 2015. Resilient Severndale (the applicant) 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 considering the planning application, the Council took the community fund donation into account and the planning permission imposed a condition in relation to the donation.

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.

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, it was 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”

In agreeing with Mr Wright’s stance, the Supreme Court unanimously dismissed the appeal. Lord Sales stated that “The community benefits to be provided by Resilient Severndale did not affect the use of the land. Instead, they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold.” This helps to promote public trust in and the integrity of the planning system.

Lessons to take away from this:
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’.

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