Wright, R (on the application of) v Forest of Dean District Council Resilient Energy Serverndale Ltd

A matter is material to a planning decision only if it serves a planning purpose, relating to the character or use of land, and has a real connection with the proposed development. Desirability, public benefit, the source of money, or a developer’s voluntary offer is not enough. An off-site benefit may qualify, but it must satisfy those requirements. Planning policy cannot make an otherwise immaterial consideration material, and an immaterial benefit cannot be made material by aggregating it with other benefits. A turnover-based donation to an unrestricted community fund therefore remained immaterial, despite the project’s community-led structure and renewable-energy benefits.

Forest of Dean District Council granted Resilient Energy Severndale Limited planning permission for a community-scale wind turbine. The proposal included an annual donation of 4% of turnover to a local community fund. The Council treated that donation as a material planning consideration.

On judicial review, Dove J held that the donation was not material and quashed the permission in [2016] EWHC 1349 (Admin). The Council and Resilient Severndale appealed. The central issue was whether the community-led nature of the development and the proposed community benefit fund gave the donation a sufficient planning purpose and real connection with the development.

Disposition. The Court of Appeal unanimously dismissed the appeals. Hickinbottom LJ gave the principal judgment. Davis LJ and McFarlane LJ agreed.

1. Materiality. A planning authority must have regard to material considerations and disregard immaterial ones. The weight given to a material consideration is for the authority, but whether a matter is material is a question of law for the court.
2. Newbury criteria. A consideration must serve a planning purpose by relating to the character or use of land, and must have a real connection with the permitted development. The connection must be more than fanciful, remote, trivial or de minimis. Off-site benefits may be material if they satisfy those criteria. A matter does not become material merely because it is desirable, publicly beneficial, funded from the development, or offered by the developer. These principles were derived from Newbury District Council v Secretary of State for the Environment [1981] AC 578 and confirmed in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited [2017] UKSC 66.
3. Application. The proposed 4% turnover donation was an unrestricted off-site contribution. It could be used for community causes having no planning purpose or connection with the wind turbine. The community benefit society structure, local administration of the fund and public desirability of the benefits did not alter that conclusion. An immaterial donation could not become material by being aggregated with other socio-economic benefits.
4. Policy and statutory provisions. Government policy encouraging renewable energy and community involvement could itself be material only insofar as it complied with the Newbury criteria. Policy could not convert an immaterial consideration into a material one. Section 70(4) of the Town and Country Planning Act 1990 made specified local finance considerations material, but did not include community benefit fund donations. The necessity requirements in section 106 of that Act and regulation 122 of the Community Infrastructure Levy Regulations 2010 applied to planning obligations, not to the attachment of planning conditions.
5. Authorities and final result. Authorities concerning local employment, local sourcing and social or community benefits were distinguishable because the benefits there were directly related to the use of land or the development. Dove J had correctly concluded that the donation was not a material consideration. The grant of planning permission was therefore properly quashed.

• Court of Appeal (Civil Division): Appeals dismissed on 14 December 2017.
• High Court, Queen’s Bench Division (Planning Court): Dove J, in [2016] EWHC 1349 (Admin), held that the community donation was not a material planning consideration and quashed the grant of planning permission.