Supreme Court: community benefits not planning 'material consideration'

Out-Law News | 20 Nov 2019 | 12:35 pm | 3 min. read

Proposed donations to a community benefit fund from the proceeds of a new wind turbine could not be taken into account by a local authority when deciding whether to grant planning permission for the development, the Supreme Court has confirmed.

According to the Supreme Court, the benefits proposed by developer Resilient Severndale were not "proposed as a means of pursuing any proper planning purpose". The local planning authority, Forest of Dean District Council, was therefore not entitled to treat them as a 'material consideration' when granting planning permission.

The unanimous judgment from the Supreme Court upholds a 2016 High Court judgment in the same case.

Kingsley Nicholle

Nicholle Kingsley

Partner

The Supreme Court has taken a relatively safe approach to a difficult issue - relying on principles established in case law going right back to 1981 and traditional interpretations of a 'planning purpose'.

Lord Sales, giving the judgment of the court, said: "The benefits were not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general benefits to the community. Moreover, they did not fairly and reasonably relate to the development for which permission was sought".

"The community benefits to be provided by Resilient Severndale did not affect the use of the land. Instead, 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, in breach of the principle that planning permission cannot be bought or sold. This is so whether the development scheme is regarded as commercial and profit-making in nature, as [the Court of Appeal] thought it was, or as a purely community-run scheme to create community benefits," he said.

Planning law expert Nicholle Kingsley of Pinsent Masons, the law firm behind Out-Law, said that the Supreme Court's decision was "not unexpected".

"The Supreme Court has taken a relatively safe approach to a difficult issue - relying on principles established in case law going right back to 1981 and traditional interpretations of a 'planning purpose'," she said.

"In some ways this is not an unexpected decision because of the difficulties in linking contributions towards general community benefits with the decision to grant planning permission - particularly in this case, where the amount of the contribution was linked to a percentage of turnover. On the other hand, it fails to reflect a change in the position of section 106 agreements and the increasing prominence of community benefits in planning decisions – and the need to promote innovative approaches to this issue generally," she said.

The council granted planning permission to Resilient Severndale for a 60 metre 'community scale wind turbine', capable of generating up to 500 kilowatts. The developer had proposed that the wind turbine would be erected and run by a community benefit society, and that an annual donation based on 4% of the society's turnover from the operation of the turbine over its projected life of 25 years would be made to a local community fund.

The council, in its decision to grant planning permission, expressly took into account the community fund donation. A local resident, Mr Wright, challenged the grant on the grounds that the council had not been entitled to do so.

In its judgment, the Supreme Court referred to settled case law on the meaning of the term 'material consideration' in the 1990 Town and Country Planning Act. The leading case, from 1981, Newbury District Council v Secretary of State for the Environment, established a three-fold test: a material consideration must be for a planning purpose and not for any ulterior purpose; must fairly and reasonably relate to the development; and must not be so unreasonable that no reasonable planning authority could have imposed it.

The developer argued that what counts as a 'material consideration' should be updated in line with changing government policy, which seeks to encourage the development of community renewable and low-carbon energy projects. The Supreme Court, however, disagreed.

"To say that the meaning of the term changes according to what is said by ministers in policy statements would undermine the position ... that what qualifies as a 'material consideration' is a question of law on which the courts have already provided authoritative rulings," said Lord Sales in his judgment. "The interpretation given to that statutory term by the courts provides a clear meaning which is principles and stable over time."

The judge noted that parliament had the ability to amend the statute when it wished to expand the range of factors which should be treated as material; something that it had already done to reflect 'any considerations relating to the use of the Welsh language'.