Wind turbines can evoke strong feelings. To some they are vital and eye-catching sources of renewable energy. To others they are simply bird- and insect-destroying eyesores. But in granting planning consent, can a local authority have regard to a proposed annual donation to a local community fund? Would this be a material planning consideration? No, said the Supreme Court on 20 November 2019. 

Resilient proposed that the turbine be erected and run by a community benefit society (CBS) and an annual donation would be made to a local community fund, based on 4% of the CBS turnover over its projected 25-year life. In granting permission, the council imposed a condition that the development be undertaken by a CBS with the community fund donation as part of the scheme. 

Wright’s contention was that this was unlawful since the proposed donation was not a material planning consideration.

The issue on the appeal was whether the promise to provide a community fund donation qualifies as a ‘material consideration’. Section 70(1) of the 1990 act empowers a local planning authority to grant permission either unconditionally or subject to such conditions as it thinks fit. Section 70(2) provides that in dealing with planning consent applications an authority shall have regard (among other things) to material development plan provisions, material local finance considerations and any other material considerations. 

Lord Sales cited the leading case of Newbury District Council v Secretary of State for the Environment [1981] AC 578, where Viscount Dilhorne had said that planning conditions ‘must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also, they must not be so unreasonable that no reasonable planning authority could have imposed them’. In the court’s view: ‘The relevance of the Newbury criteria to determine the ambit of “material considerations”… is well established and is not in contention on this appeal.’ And: ‘It has long been recognised that a consequence of this approach of relying on the Newbury criteria to identify “material considerations” is that planning permission cannot be bought or sold.’

Consequently, in the instant case the community benefits promised by Resilient failed to satisfy the Newbury criteria and therefore did not qualify as a material consideration. The benefits were not to pursue any proper planning purpose, but were for the ulterior aim of providing general benefits to the community. They were proffered as a general inducement to the council to grant planning permission and were a method of seeking to buy the permission. This breached the principle that planning permission cannot be bought or sold.