Forest of Dean District Council granted planning permission for a 500kW wind turbine after taking into account a promise to pay 4% of the operating society’s turnover into a local community fund for 25 years. The Supreme Court held that this promise was not a material consideration: it did not serve a planning purpose related to the use of the land, but was a general inducement to grant permission. The appeal was dismissed and the quashing of the permission stood.
The proposal and the Council’s decision
Resilient Energy Severndale Ltd applied to Forest of Dean District Council for permission to change agricultural land at Severndale Farm, Tidenham, to a single community-scale 500kW wind turbine. The land was not designated for development, and the proposal was not in accordance with the development plan.
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The application, made on 29 January 2015, proposed that the turbine be erected and run by a community benefit society. Local people could subscribe for shares, with estimated returns of 7% a year, and the society would make an annual donation to a local fund equal to 4% of turnover over the turbine’s projected 25-year life. A panel of local people would allocate the money, and the fund’s objects would include any community project. Evidence in the proceedings indicated that a similar fund at St Briavels had been used for a village handyman service, defibrillators, waterproof clothing and a meal for an older people’s lunch club.
The planning officer initially advised that the proposed community fund was not a material consideration. The final report changed that advice and treated the donation as a benefit in favour of the proposal. The committee took it into account. A condition required the development to be undertaken by a community benefit society.
The challenge
Mr Wright, a local resident, brought judicial review. He argued that the donation did not serve a planning purpose, was unrelated to land use and had no real connection with the development. Dove J accepted those submissions and quashed the permission. The Court of Appeal dismissed an appeal by Resilient Severndale and the Council. Hickinbottom LJ, with whom McFarlane and Davis LJJ agreed, endorsed Dove J’s reasons. Davis LJ emphasised that the question was not whether the benefits were desirable, but whether they were material in planning terms. The Secretary of State for Housing, Communities and Local Government intervened in support of a further appeal and invited the Supreme Court to update the established approach to a modern and expanded understanding of planning purposes.
Material considerations and the use of land
The issue was whether the promised donation was a material consideration under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. Section 70(2) requires an authority dealing with an application to have regard to the development plan and certain other matters so far as material, and to any other material considerations. Section 38(6) requires a determination under the planning Acts to accord with the development plan unless material considerations indicate otherwise.
Lord Sales, with whom Lady Hale, Lord Reed, Lord Lloyd-Jones and Lord Thomas agreed, held that those considerations must be material to the proposed change of use. Planning permission is required for development, which here means a material change in the use of land. The court applied the criteria associated with Newbury District Council v Secretary of State for the Environment. A condition, and likewise a consideration said to favour permission, must be imposed for a planning purpose rather than an ulterior one, must fairly and reasonably relate to the permitted development, and must not be so unreasonable that no reasonable planning authority could have imposed it. In Westminster City Council v Great Portland Estates plc, Lord Scarman held that a planning purpose is one which relates to the character of the use of land.
One consequence is that planning permission cannot be bought or sold. Lord Sales treated that principle as protecting landowners from having unconnected payments extracted as the price of permission, and protecting the public from a developer buying permission that the merits of the development would not justify. A payment into a fund for general community benefits, unrelated to the proposed change in the character of the use, lacks the required connection. The same approach had led the Supreme Court, in Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority, to hold unlawful obligations to contribute to infrastructure unconnected with the burdened land. Whether something is a material consideration is a question of law. National or local policy cannot override the statute or make relevant what would otherwise be irrelevant.
Why the donation could not be taken into account
The promised benefits failed that test. They were not put forward as a way of pursuing a proper planning purpose, but for the ulterior purpose of providing general community benefits. They did not fairly and reasonably relate to the development, and they did not affect the use of the land. They were a general inducement to the Council and a method of seeking to buy the permission. Lord Sales held that this conclusion followed whether the scheme was commercial and profit-making, as Hickinbottom LJ had considered it to be, or purely community-run.
Renewable-energy policy did not alter the result. The National Planning Policy Framework encouraged support for community-led renewable and low-carbon energy, and planning practice guidance said that authorities might give positive weight to initiatives with clear evidence of local community involvement and leadership. Department of Energy and Climate Change guidance described voluntary community benefit funds and said that communities hosting renewable energy should be recognised and rewarded. That guidance also stated, however, that such benefits are separate from the planning process and are not material to whether permission should be granted. Lord Sales regarded that as an accurate statement of the established legal rule.
Policy cannot change the statutory meaning
The court rejected the argument that the statutes are always speaking in a sense that allows the meaning of material consideration to move with government policy. The meaning was not in doubt, and updating it was neither required nor appropriate. Parliament amends section 70(2) when it wishes to enlarge the matters that may be treated as material, as it did for considerations relating to the use of the Welsh language.
Government policy can identify benefits relevant to the use and development of land. It cannot, by describing a benefit as desirable, change the statutory test for whether it is material to the planning decision.
Condition 28 could not repair the error. Imposing it could not turn an immaterial consideration into a material one.
Verdict: The Court unanimously dismissed the appeal. The promised community donation had no sufficient connection with the development to be a material planning consideration. The planning permission remained quashed.
