Is a community donation a material consideration in planning terms?

In 2015 the Forest of Dean District Council granted planning permission for a wind turbine which was to be run by a community benefit society. In granting permission, the Forest of Dean District Council’s planning committee had specifically taken into account the developer’s promise that an annual donation would be made to a community fund for the life-time of the development.

The Supreme Court recently considered, in the case of R (Wright) v Resilient Energy Severndale Ltd and another [2019] UKSC 53, whether the Council was correct to treat the community donation as a material consideration.

Lady Hale, giving judgment, first considered the statutory basis for what a local planning authority must have regard to on receipt of a planning application. In accordance with section 70(2) of the Town and Country Planning Act 1990 planning authorities must consider the development plan, certain other matters “so far as material to the application” and “any other material consideration” .

Lady Hale then referred to the case of Newbury District Council v Secretary of State for the Environment [1981] AC 578 where Viscount Dilhorne treated the scope of a material consideration in the same manner as a local authority’s power to impose a condition, setting out what is now referred to as the “Newbury criteria”, namely that conditions must:

• “be for a planning purpose”;
• “fairly and reasonably relate to the permitted development”; and
• “not be so unreasonable that no reasonable planning authority could have imposed them”.

Lady Hale then discussed the importance of relying on the criteria as both protection for landowners and for the public interest. The criteria prevent planning authorities from extracting money for granting permission when such payment has insufficient connection to the land, and they prevent developers from buying permission that would be contrary to the public interest.

Turning to the facts of the case, the benefits proposed were not for any proper planning purpose but rather for providing general community benefits. They also did not fairly and reasonably relate to the development. Indeed, in Lady Hale’s words, “they were proffered as a general inducement to the Council to grant permission” thereby constituting a breach of the principle that planning permission cannot be bought or sold. Accordingly, planning permission was quashed.

This unanimous Supreme Court decision is a useful reminder to all that when faced with some sort of “community donation” the local authority must carefully consider whether it amounts to a true material consideration.

If you need advice on any aspects of planning permission and community donations, please contact our planning experts.