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

A consideration is material to a planning application only if it relates to the proposed change in the character of the use of the land. A developer benefit must serve a planning purpose, fairly and reasonably relate to the development, and satisfy the applicable reasonableness requirement.

A payment for general community purposes, unconnected with the proposed land use, cannot become material merely because it is desirable or supported by government or local policy. Treating such an inducement as material would breach the principle that planning permission cannot be bought or sold. The meaning of “material consideration” is a question of law. Policy may guide planning judgment, but cannot expand the statutory concept or convert an immaterial consideration into a material one.

R (on the application of Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council concerned permission for a community-scale wind turbine. The developer promised to donate 4% of the operating society’s turnover to a fund supporting general local causes. The Council treated that promise as a material consideration and imposed a condition requiring the development to operate through a community benefit society.

A local resident successfully sought judicial review. Dove J quashed the permission because the donation did not serve a planning purpose or sufficiently relate to the proposed use of the land. The Court of Appeal dismissed the developer’s and Council’s appeal in [2017] EWCA Civ 2102.

The central issue before the Supreme Court was whether the 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. A subsidiary issue concerned the validity of the condition.

1. Appeal dismissed unanimously. Lord Sales delivered the judgment, with which Lady Hale, Lord Reed, Lord Lloyd-Jones and Lord Thomas agreed. The promised community donation was not 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. The permission had therefore rightly been quashed.

2. The statutory concept of materiality concerns the proposed development, namely the proposed change in the character of the use of the land. The applicable criteria derived from Newbury District Council v Secretary of State for the Environment [1981] AC 578 require a condition or proposed benefit to serve a planning purpose, fairly and reasonably relate to the permitted development, and avoid Wednesbury unreasonableness. A planning purpose is one relating to the character of the use of land.

3. The donation failed the first two criteria. Its purpose was to provide general benefits selected by the local community. It did not affect the use of the development land and had no sufficient nexus with that use. It was instead an inducement to grant permission. Taking it into account would contravene the established principle that planning permission cannot be bought or sold. That principle protects landowners from demands for unrelated benefits and protects the public from developers purchasing permission for otherwise unacceptable development.

4. Whether a consideration is material is a question of law. Neither central-government policy nor a local development plan can make legally irrelevant matters relevant. Policy may affect the weight or justification given to a consideration which already relates to the use of the land. It may also affect whether a condition is reasonable. It cannot alter the settled statutory meaning of “material consideration”; Parliament must legislate if it wishes to expand that concept.

   The court declined to “update” Newbury District Council v Secretary of State for the Environment. It was unnecessary to decide the condition issue separately because imposing a condition could not convert the immaterial donation into a material consideration.

1. United Kingdom Supreme Court: Unanimously dismissed the appeal and held that the planning permission had rightly been quashed: [2019] UKSC 53.
2. Court of Appeal: Hickinbottom LJ, with whom McFarlane and Davis LJJ agreed, dismissed the developer’s and Council’s appeal from Dove J: [2017] EWCA Civ 2102.
3. High Court: Dove J allowed the resident’s judicial review claim and quashed the planning permission. A citation is not stated in the judgment.