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

This case concerns whether a developer's promise to provide an annual community fund donation (4% of turnover over 25 years) was a "material consideration" for the grant of planning permission under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The Supreme Court applied the established Newbury criteria: a consideration is material only if it serves a planning purpose, fairly and reasonably relates to the development permitted, and is not so unreasonable that no reasonable planning authority could have imposed it.

The court held that the community fund donation did not satisfy those criteria. It did not relate to the use of the land or the character of the proposed development and was instead an ulterior purpose amounting to an attempt to buy planning permission. National policy documents and guidance on community benefits do not change the legal meaning of "material consideration" and cannot make immaterial matters material. The grant of permission was therefore unlawful and was quashed. The court did not need to determine separately the validity of the specific planning condition (condition 28).

Background and parties: Resilient Energy Severndale sought planning permission to change agricultural land to erect a single 500kW community-scale wind turbine. The application included a commitment that a community benefit society would operate the turbine and pay an annual community fund donation equal to 4% of turnover over 25 years. Forest of Dean District Council granted permission and imposed a condition requiring the project to be undertaken through a registered community benefit society (condition 28). Mr Wright, a local resident, sought judicial review to quash the permission on the ground that the promised donation was not a material planning consideration.

Procedural history: Dove J quashed the permission at first instance. The Court of Appeal ([2017] EWCA Civ 2102) dismissed the appellants' appeal, agreeing with the judge. The matter proceeded to the Supreme Court on appeal by Resilient Severndale and the Council, with the Secretary of State intervening in support of the appellants' submissions.

Nature of the claim and relief sought: A challenge by way of judicial review to quash the planning permission on the ground that the Council unlawfully treated the community fund donation as a material consideration; alternatively, the legality of condition 28 was raised as a subsidiary issue.

Issues framed by the court: (i) Whether the promise of a community fund donation is a "material consideration" for the purposes of section 70(2) of the 1990 Act and section 38(6) of the 2004 Act; (ii) whether the Council was entitled to impose condition 28.

Court's reasoning and outcome: The court reaffirmed the established approach that what counts as a material consideration is governed by the Newbury criteria and by precedent (including Pyx Granite, Fawcett Properties, Mixnam's Properties, Plymouth, Tesco and Aberdeen). A material consideration must serve a planning purpose and have a sufficient nexus with the proposed change in the character or use of the land. Community benefit payments that are general and unconnected to the land or to mitigating planning harms do not meet that test. The Supreme Court rejected the appellants' submission that national policy or guidance (including the National Planning Policy Framework, Planning Practice Guidance and DECC guidance on community benefits) has altered the legal meaning of "material consideration". The court concluded the promise to provide a community fund was an attempt to procure planning permission by offering general community benefits unconnected to the development and therefore was not material; the permission was quashed. The court did not need to address condition 28 separately.

Wider context: The court emphasised the long-standing legal principle that planning permission cannot be bought or sold and noted that where Parliament intends to expand what may be treated as material, it has done so expressly (examples in statute). The decision emphasises limits on taking voluntary community benefits into account in planning decisions.

Appeal dismissed. The Supreme Court held that the proffered community fund donation did not qualify as a "material consideration" under section 70(2) of the Town and Country Planning Act 1990 or section 38(6) of the Planning and Compulsory Purchase Act 2004 because it did not serve a planning purpose nor fairly and reasonably relate to the proposed development; it amounted to an attempt to buy planning permission. National policy guidance did not alter the established legal meaning of "material consideration." The planning permission was therefore lawfully quashed by the courts below.