Wright, R (on the application of) v Forest of Dean District Council & Anor

An off-site financial contribution associated with a development is a material planning consideration only where it serves a planning purpose and fairly and reasonably relates to the development. For off-site benefits, there must be a real connection with the development; a fanciful, remote or merely community-based connection is insufficient. Planning policy and the community-led character of a proposal cannot make an otherwise immaterial consideration material. A local community donation which may be spent on any community benefit, without a defined planning purpose or connection with the development, is therefore immaterial to the grant of planning permission.

The claimant challenged the defendant council’s grant of planning permission for a community-scale wind turbine. The application promoted socio-economic benefits, including an annual donation of 4% of turnover to a local community fund. The council’s planning committee treated that donation as a positive material consideration and required the development to proceed through a Community Benefit Society.

The claimant argued that the donation was unrelated to land-use planning and that the associated condition was unlawful. The principal issue was whether the donation was a material consideration which the council could lawfully take into account. The court also considered the interrelationship between that issue and the condition securing the community-benefit structure.

1. Claim allowed and planning permission quashed. The council unlawfully treated the proposed local community donation as a material consideration.
2. The governing principles derive from Newbury District Council v Environment Secretary [1981] AC 579, as explained in Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661. A consideration must serve a planning purpose and fairly and reasonably relate to the permitted development. The decision must also avoid irrationality.
3. For an off-site benefit, R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council (2011) 1 AC 437 requires a real, rather than fanciful or remote, connection with the development. This is a legal requirement, not a question of fact and degree.
4. The donation was an untargeted off-site financial contribution. It was not directed towards mitigating a planning impact, regulating the operation of the turbine, addressing infrastructure consequences, or securing an identified land-use benefit. Its only limitation was that selected community representatives considered the expenditure beneficial to the community. It therefore served no planning purpose and did not fairly and reasonably relate to the development.
5. The community-led character of the proposal, the National Planning Policy Framework, the Planning Practice Guidance and ministerial policy could not alter that legal conclusion. Policy cannot make a consideration material when it is immaterial as a matter of law.
6. The court declined to apply the no-difference discretion under section 31(2A) of the Senior Courts Act 1981. The planning balance was finely poised, and it could not be accepted that the outcome would not have been substantially different without the unlawful consideration.
7. It was unnecessary to determine Ground 2 concerning condition 28, although the court noted that the condition was linked to the unlawful community donation.

First-instance judicial review. No prior appellate decision is stated in the judgment.