Planning permission cannot be bought or sold
Published on 29th Nov 2019
Councils have recently been reminded only 'material considerations' must be considered when deciding whether or not to grant planning permission.
The test for what constitutes a 'material consideration' is determined by the long-standing principles of the Newbury criteria. This threefold test confirms that any conditions imposed on the planning permission must be: for a planning purpose and not for any ulterior purpose; fairly and reasonably related to the development; and not so unreasonable that no reasonable planning authority could have imposed them.
The recent case of R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council heard by the Supreme Court saw the appellants make an attempt to widen the scope of the Newbury criteria.
The case concerned a judicial review challenge brought by Mr.Wright (a local resident) against a planning application submitted by Resilient Energy Severndale. The application was made for the change in use of land at Severndale Farm from agriculture to a wind turbine, which would be built and run by a community benefit society. The contentious element of the application was the promise made by Resilient to make an annual community fund donation.
The Council expressly considered the donation when deciding to grant the permission. In fact, it went as far to impose this promise to donate as a condition on the planning permission. The Council had clearly considered the monetary donation as a 'material consideration' to granting permission for the change of use, which goes against the long-established Newbury principles.
Mr Richard Kimblin QC for the appellants submitted that the judges must “update Newbury to a modern and expanded understanding of planning purposes”. He argued that there was a "changing government policy" with which the Newbury criteria should be updated and aligned. Current government policy is addressed within guidance such as the "Community Benefits from Onshore Wind Developments: Best Practice Guidance for England" produced by the Department of Energy and Climate Change in 2014. This guidance does seem to promote community involvement in onshore windfarm projects. Consequently, reconciling government policy with the law on planning is creating difficulty for the courts.
The court was not convinced by Kimblin's arguments and found the proposal to update Newbury to be "neither required not appropriate". Lord Sales firmly stated that the Newbury criteria were "a protection for the public interest" and he would not see them compromised. The Supreme Court found that the obligation to make a donation, on which planning permission was made conditional, was serving an ulterior and non-planning-related purpose and did not relate directly to the development of the land. The Supreme Court therefore ruled unanimously that the grant of planning permission was invalid and reiterated that the letter of the law must be strictly followed.
In summary, 'material considerations' must directly serve a planning purpose and relate to the use of the land. Otherwise they run the risk of being conceived as a 'general inducement to the Council'.