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Heads up on 'material considerations'

You really can’t buy a planning permission, the Supreme Court has said. Mark Lowe QC and Estelle Dehon report on a significant ruling in a case involving proposed community donations and the grant of planning permission for a wind turbine.

When is something properly material to a grant of planning permission? What types of payments by a developer can be taken into account in favour of such a grant? These questions were answered by the Supreme Court in R (Wright) v Resilient Energy Severndale Ltd. and Forest of Dean Council [2019] UKSC 53, handed down earlier this month.

The judgment of Lord Sales (unanimously agreed) clearly reaffirmed that a material consideration must serve a planning purpose. That can only be so where the consideration relates to the character of the use of the land. It is axiomatic from this test that planning permissions cannot be bought and sold by making of payments or the provision of other benefits with no sufficient connection with the proposed use of the land.

Moreover, policy documents cannot make 'material' that which would otherwise be immaterial. Lord Sales held that what is "material" is, in the end, a question of law and if Parliament wished to expand the range of relevant factors in section 70 of the Town and Country Planning Act 1990, it could do so.

We discuss some of the implications of this in our comment below.

In summary, the Court has reiterated the established principles relating to the identification of material considerations in planning decisions, unanimously resisting the invitation made by counsel for the Secretary of State to "update" the leading case, Newbury (1981), "to a modern and expanded understanding of planning purposes".

Facts – "community benefit" payments not a material consideration

The Wright case concerned an application for planning permission for making a material change of use of land from agriculture to the erection of a community scale 500kW wind turbine. Forest of Dean Council had been persuaded by the applicant and its officers to take into account as a material consideration the fact that the operator would commit to make an annual payment of 4% of the income generated by the turbine to a local community fund and sought to secure that benefit by the imposition of a condition attached to the permission.

This decision was challenged by Mr Wright, a local resident, who succeeded in the High Court (Dove J) and in the Court of Appeal (Hickinbottom, McFarlane and Davis LJJ). The Supreme Court found the proposed community benefit payments did not pursue "any proper planning purpose", but were made "for the ulterior purpose of providing general benefits to the community [...] they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought" (paragraph 44).

The Court justified its position on the basis that "a principled approach to identifying material considerations in line with the Newbury criteria is important both as a protection for landowners and as a protection for the public interest (paragraph 39). "Parliament has itself in this way underwritten the integrity of the planning system" (paragraph 42).

Case comment

There are some interesting aspects of the Supreme Court's decision. Three jump out:

  • Lord Sales' comment about planning policy not making the immaterial material is interesting. His point is that what is said by Ministers in policy statements cannot "undermine" what the settled case law has determined the term "material consideration" means in the planning statutes (paragraph 45). A policy statement cannot redefine the concept of a "material consideration", which is a legal question that has an answer "consistent over time". This approach is interesting given that government policy statements very often assert that they are material considerations (see, eg, paragraph 2 of the NPPF, or the Written Ministerial Statement on localism and wind energy). What if the Government issued a Written Ministerial Statement tomorrow asserting that the payment of a community benefit is a material consideration that must be taken into account when deciding whether to grant planning permission for wind farms? On the approach in Wright, the mere assertion by the Government that such payments were "material" could not make them so.
  • There is an interesting interrelationship between material considerations and conditions. The Supreme Court accepted that the criteria established by the case law for identify valid "material considerations" are the same as for the imposition of planning conditions: they must be for a planning purpose and not for any ulterior purpose, they must fairly and reasonably relate to the development permitted and must not be so unreasonable that no reasonable planning authority could have imposed them. Lord Sales, in paragraph 34, provides the rationale for this "equation of the ambit of 'material considerations' with the ambit of the power to impose conditions", which he described as "logical, because if a local planning authority has the power to impose a particular planning condition as the basis for its grant of permission it would follow that it could treat the imposition of that condition as a material factor in favour of granting planning permission."
  • Finally, this decision is a reminder that all actors in this area, whether applicants, third party objectors or local planning authorities, should remain vigilant in testing the validity of requested or offered planning benefits or 'contributions' since it is only those that are true material considerations that otherwise comply with CIL Regulation 122 that can be taken into account on the grant of permission.

Mark Lowe QC and Estelle Dehon are barristers at Cornerstone Barristers.

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