R (on the application of Wright) v Resilient Energy Severndale Ltd & Anor [2019] UKSC 53

The Supreme Court held that a developer's promise of a community benefit fund donation, tied to a proposed wind turbine, was not a material planning consideration. Planning permission cannot be bought through benefits unrelated to land use, reaffirming the Newbury criteria.

Facts

Resilient Energy Severndale Ltd applied to Forest of Dean District Council for planning permission to change the use of land at Severndale Farm from agriculture to the erection of a single 500kW community-scale wind turbine. The application proposed that the turbine would be operated by a community benefit society, with an annual donation of 4% of the society’s turnover being paid to a local community fund over the turbine’s projected 25-year lifespan.

The Council granted planning permission on 30 September 2015, expressly taking the community fund donation into account as a material consideration. Condition 28 required that the development be undertaken via a Community Benefit Society registered under the Co-Operative and Community Benefit Societies Act 2014. Mr Wright, a local resident, successfully challenged the grant before Dove J, and the Court of Appeal dismissed the appeal by Resilient Severndale and the Council. They appealed to the Supreme Court.

Issues

The central issue was whether the promised community fund donation qualified as a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. A subsidiary issue was whether the Council was entitled to include condition 28 in the planning permission.

Arguments

Appellants (Resilient Severndale and the Council)

Mr Kingston QC submitted that the planning statutes had to be regarded as “always speaking” and that the meaning of “material consideration” should be updated in line with changing government policy, including the NPPF and DECC Guidance encouraging community-led renewable energy initiatives. He relied on Fawcett Properties and a series of subsequent authorities, including Copeland, Royco Homes, Mitchell, Welcome Break, Verdin, and Working Title Films, contending that policy informs the meaning of the statutory term. The Secretary of State intervened, inviting the court to “update Newbury to a modern and expanded understanding of planning purposes”.

Respondent (Mr Wright)

Mr Wright submitted that the community benefit fund donation did not serve a planning purpose, was not related to land use, and had no real connection to the proposed development. It therefore failed the established test for material considerations under Newbury.

Judgment

Lord Sales, giving the leading judgment with whom all other Justices agreed, dismissed the appeal. He reaffirmed the three-fold Newbury criteria as set out by Viscount Dilhorne: conditions must be imposed for a planning purpose and not for any ulterior one; they must fairly and reasonably relate to the development permitted; and they must not be Wednesbury unreasonable. The same test governs the ambit of “material considerations” under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.

Lord Sales emphasised the long-established principle that planning permission cannot be bought or sold. Drawing on Westminster, Plymouth, Tesco, and most recently Aberdeen, he held that a principled approach under the Newbury criteria protects both landowners (from having benefits extracted as a price for permission) and the public interest (from developers purchasing permission that would otherwise be contrary to the merits of the proposal).

On the facts, the community benefits promised by Resilient Severndale did not satisfy the Newbury criteria. They were not proposed for any proper planning purpose but for the ulterior purpose of providing general benefits to the community. They did not affect the use of the land and were “proffered as a general inducement to the Council to grant planning permission”, constituting a method of buying permission.

Lord Sales rejected Mr Kingston’s “always speaking” argument. The meaning of “material consideration” is a question of law on which the courts have provided authoritative rulings; it cannot be altered by ministerial policy statements, the NPPF, or local plans. Parliament has amended section 70(2) where it has wished to expand the range of relevant factors. The DECC Guidance itself accurately recognised that voluntary community benefits are generally not material to the planning decision.

Analysing the authorities relied on by the appellants (Copeland, Royco Homes, Mitchell, Welcome Break, Verdin and Working Title Films), Lord Sales found that in each case the matter in issue directly related to the use of the land, satisfying the second Newbury criterion. Policy guidance in those cases was relevant to the distinct question of whether there was adequate policy justification to support the condition or refusal — not to the meaning of “material consideration” itself. Mr Kingston’s argument confused these two different questions.

As to condition 28, it was unnecessary to consider separately; imposing a condition cannot convert an immaterial consideration into a material one.

Implications

The decision firmly reaffirms the orthodox interpretation of “material considerations” under the Newbury criteria and the principle that planning permission cannot be bought or sold. The Supreme Court declined to “update Newbury” despite the Secretary of State’s invitation, emphasising that the statutory term has a clear, principled, and stable legal meaning that cannot be adjusted through policy pronouncements.

For developers and local planning authorities, the judgment confirms that voluntary community benefits — such as donations to general community funds — cannot serve as material planning considerations unless they have a sufficient connection with the proposed change in the use of the land. This is so even where national policy, such as the NPPF and DECC Guidance, encourages community-led renewable energy initiatives.

The decision preserves a key structural safeguard of the planning system: that decisions must be made on proper planning grounds tied to land use, not on the basis of extraneous financial inducements. It is particularly significant for onshore wind and other renewable energy developments, where community benefit funds have been commonly used. Such benefits remain permissible as voluntary arrangements outside the planning process, but cannot influence the grant of permission itself.

The judgment also clarifies the distinction between two questions that had become blurred in the authorities: (i) whether a consideration sufficiently relates to the use of land so as to be capable of being material; and (ii) whether, given that it is material, there is sufficient policy justification to give it weight. Policy documents bear on the second question, but not on the first, which remains a matter of statutory interpretation.

Verdict: Appeal dismissed. The grant of planning permission was rightly quashed because the community fund donation did not satisfy the Newbury criteria and therefore did not qualify as a material consideration for the purposes of section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

Source: R (on the application of Wright) v Resilient Energy Severndale Ltd & Anor [2019] UKSC 53