The recent Supreme Court decision in Wright v Resilient Energy has reinforced the existing definition of 'material considerations' in planning application decisions as set out in section 70 (2) Town and Country Planning Act 1990, section 38 (6) Planning and Compulsory Purchase Act 2004 and the 'Newbury' Criteria.


Factual Background:

Mr Wright challenged a planning decision by the Forest of Dean District Council permitting the erection of a wind turbine at Severndale farm. The applicant, Resilient Energy Severndale, proposed that the turbine would be erected and managed by a community benefit society and the application included a yearly donation of 4% of the turbine's profit to a local community fund for 25 years. The Council expressly considered, and conditioned, the management of the scheme by the community benefit society and the community fund donation when it granted planning permission. Mr Wright challenged the decision on the grounds that the community fund was not a material planning consideration, and that the Council had acted unlawfully by considering it as a relevant factor in making its decision. The third party challenge was successful in the High Court and upheld on appeal to the Court of Appeal. Resilient Energy and the Council then appealed to the Supreme Court.   

Supreme Court Decision:

The Supreme Court made the unanimous decision to dismiss Resilient Energy's appeal, and in doing so considered the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004 and the 'Newbury' Criteria which defined the scope of the concept of "material considerations".

Newbury established a three stage test to establish whether a consideration was "material", in that it must:

  • be for a planning purpose and not for any ulterior one;
  • fairly and reasonably relate to the development in question; and
  • otherwise be reasonable. 

Lord Sales held that the community benefits to be provided did not affect the use of the land subject to the permission, and breached the principle that planning permission cannot be brought or sold. They therefore breached the first and third points in the Newbury criteria.  Accordingly, the Council had relied on matters which did not qualify as a material consideration and therefore the grant of planning permission had rightly been quashed. 

Whilst the Secretary of State for Housing, Communities and Local Government intervened in support of the appeal, and made submissions inviting the Court to "update Newbury to a modern and expanded understanding of planning purposes", the invitation was not accepted by the Court. The Court found it was for Parliament alone to consider whether it had now become necessary to expand the range of factors which could be treated as material for the purpose of the provision.  

Implications:

The Supreme Court decision reinforces the importance to be placed on the application of the long-established Newbury Criteria, and the statutory definitions of what constitutes a material consideration provided in the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004. 

It remains essential that local planning authorities expressly satisfy the Newbury Criteria when granting permission for any development to avoid risk of challenge. For their part, developers should continue to remember that scheme inducements which do not meet the Newbury criteria should not be considered by a local planning authority. That is regardless of whether the development scheme is promoted by a purely commercial or a not for profit/community enterprise. The Supreme Court decision upholds, in the wider public interest, the  principle that planning permission cannot be brought or sold.

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Gary Sector

Gary Sector

Partner, Planning
United Kingdom

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Marnix Elsenaar

Marnix Elsenaar

Partner, Head of Planning
United Kingdom

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