Town and country planning – Planning permission – Material consideration – Respondent objector applying for judicial review of decision to grant permission for change of use of agricultural land to install wind turbine – Proposal providing for local community donation – Permission granted subject to conditions – Court granting judicial review – Court of Appeal upholding decision – Appellants appealing – Whether local community donation constituting relevant consideration – Appeal dismissed
The first appellant developer applied to the second appellant local authority for planning permission for a change of use of agricultural land to install a wind turbine to generate renewable energy. The application was supported by an Environmental Report and accompanied by a planning statement. The proposal was stated to be one of a new range of community wind projects where shares to fund the project would be offered to the local community and a community fund set up to be administered by local trustees. The local community would have the opportunity to invest in shares in the scheme and an annual percentage of the gross revenues was proposed to be donated to the host community via a community fund.
The respondent was a local resident who opposed the development. However, the second appellant granted conditional planning permission, taking into account the local community donation as a positive feature. The respondent applied for judicial review of that decision on the grounds that the donation was not a material planning consideration and the second appellant had acted unlawfully in taking it into account. The High Court agreed with that proposition and quashed the grant of planning permission: [2016] EWHC 1349 (Admin); [2016] PLSCS 165. The Court of Appeal dismissed an appeal against that decision: [2017] EWCA Civ 2102; [2017] PLSCS 221.
The appellants appealed. The issue was whether the promise to provide a community fund donation qualified as a material consideration within section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The Secretary of State for Housing, Communities and Local Government intervened and made submissions in support of the appeal.
Held: The appeal was dismissed.
(1) Planning permission was required “for the carrying out of any development of land”: section 57(1) of the 1990 Act. “Development” was defined in section 55(1) as “the making of any material change in the use of any buildings or other land”. Section 70(2) of the 1990 Act required a planning authority to have regard to the development plan and certain other matters “so far as material to the application” and to any other considerations material to the proposed change of use. Similarly, in relation to a planning application, the “material considerations” referred to in section 38(6) of the 2004 Act were considerations material to the proposed change of use.
(2) In Newbury District Council v Secretary of State for the Environment [1981] 1 AC 578, the scope of the concept of “material considerations” was treated as the same as the ambit of the power of a local planning authority to impose such conditions “as they think fit” on the grant of planning permission. The conditions imposed had to 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 relevance of the Newbury criteria to determine the ambit of “material considerations” in the 1990 and 2004 Acts was well established. It was logical to equate the ambit of “material considerations” with the scope of the power to impose a particular planning condition. If the planning authority had the power to impose a condition, it followed that it could treat the imposition of that condition as a material factor in favour of granting permission: Newbury applied.
(2) A principled approach to identifying material considerations in line with the Newbury criteria was important both to protect landowners and in the public interest. It prevented a planning authority from extracting money or other benefits from a landowner as a condition for granting permission to develop its land, when such payment or the provision of such benefits had no sufficient connection with the proposed use of the land. It also prevented a developer from offering to make payments or provide benefits which had no sufficient connection with the proposed use of the land, as a way of buying a planning permission, contrary to the public interest to grant permission according to the merits of the development itself. The protection for landowners on the one hand and the public interest on the other had been established by Parliament through statute, as interpreted by the courts. Statute could not be overridden or diluted by general policies laid down by central government, nor by policies adopted by local planning authorities: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147 and Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2017] UKSC 66; [2017] PTSR 1413 considered.
(3) In the present case, the community benefits promised by the first appellant did not satisfy the Newbury criteria and hence did not qualify as a material consideration within section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. 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 proposed development. The first appellant required planning permission for the carrying out of “development” of the land in question, as defined in section 55(1) of the 1990 Act. The community benefits to be provided did not affect the use of the land. They were a general inducement to obtain planning permission and a method of seeking to buy the permission sought, in breach of the principle that planning permission could not be bought or sold. That was so whether the development scheme was regarded as commercial and profit-making in nature, or as a purely community-run scheme to create community benefits.
Martin Kingston QC and Jenny Wigley (instructed by Burges Salmon LLP, of Bristol) appeared for the first appellant; Paul Cairnes QC and James Corbet Burcher (instructed by the Forest of Dean District Council) appeared for the second appellant; Neil Cameron QC and Zack Simons (instructed by Harrison Grant) appeared for the respondent; Richard Kimblin QC (instructed by the Government Legal Department) appeared for the intervener.
Eileen O’Grady, barrister
