In brief

The decision by the Supreme Court of the United Kingdom in Regina (Wright) v Forest of Dean District Council (Secretary of State for Housing, Communities and Local Government intervening) [2019] UKSC 53 concerned an appeal by the developer and local planning authority (Appellants) against orders made by the appeal court upholding a trial judge's decision to set aside a planning permission. The planning permission allowed the developer to change the use of agricultural land to construct a wind turbine.

The key issue on appeal was whether a promised community fund donation, which formed part of the planning permission, was a "material consideration" under the relevant planning legislation. 

The appeal was dismissed by the Supreme Court for the following reasons: 

  • The donations were not in pursuit of any planning purpose and were for an ulterior purpose.

  • The community benefit fund did not affect the use of the land and could only be seen as an inducement to grant the planning permission.

  • Policy changes are not relevant when determining the legal meaning of "material considerations".

Background

The application concerned the change of use of agricultural land in Gloucestershire to erect a single 500kW wind turbine to generate electricity. The developer proposed that the wind turbine would be operated by a community benefit society, and that an annual donation would be made to a local community fund, based on 4% of the society's turnover. 

In approving the application, the local planning authority expressly took into account the community fund donation, and imposed a condition requiring the development to be undertaken by a community benefit society. 

A local resident, Mr Wright, challenged the planning permission on the basis that the community fund donation was not a "material consideration" for the purposes of section 70(2) of the Town and Country Planning Act 1990 (1990 Act) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (2004 Act). Mr Wright argued that the donation did not serve a planning purpose, was not related to the land use and had no real connection to the proposed development. 

Legislative and policy framework

Section 70(1) of the 1990 Act states that a local planning authority may grant a planning permission, either unconditionally or subject to such conditions as it thinks fit.

Section 70(2) of the 1990 Act states that in dealing with an application for planning permission, the authority must have regard to the following:

"(a)  the provisions of the development plan, so far as material to the application, 

(aza) a post-examination draft neighbourhood development plan, so far as material to the application, 

(aa)  any considerations relating to the use of the Welsh language, so far as material to the application; 

(b)  any local finance considerations, so far as material to the application, and 

(c)  any other material considerations."

Section 38(6) of the 2004 Act states: 

"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

At the time the planning permission was given, paragraph 97 of the National Planning Policy Framework (March 2012) (NPPF) relevantly stated that local planning authorities should:

  • "consider identifying suitable areas for renewable and low carbon energy sources, and supporting infrastructure, where this would help secure the development of such sources"; and

  • "support community-led initiatives for renewable and low carbon energy, including developments outside such areas being taken forward through neighbourhood planning".

The Department of Energy and Climate Change published a document in October 2014, which contains general guidance for onshore wind energy developments (DECC Document). The DECC Document is generally supportive of communities hosting renewable energy through community benefit funds. However, the DECC Document also relevantly states [our underlining]:

"The primary role of the local planning authority in relation to community benefits is to support the sustainable development of communities within their jurisdiction and to ensure that community benefits negotiations do not unduly influence the determination of the planning application.

There is a strict principle in the English planning system that a planning proposal should be determined based on planning issues, as defined in law. Planning legislation prevents local planning authorities from specifically seeking developer contributions where they are not considered necessary to make the development acceptable in planning terms. Within this context, community benefits are not seen as relevant to deciding whether a development is granted planning permission."

Scope of "material considerations"

As a starting point, the Court noted that while section 70(1) of the 1990 Act permitted a local planning authority to make conditions as it "thinks fit", this power was not unlimited. Centrally, the Court referred to the judgment of Viscount Dilhorne in Newbury [1981] 1 AC 578, 599–600, which states what is commonly referred to as the "Newbury criteria":

"the conditions imposed must be for a planning purpose and not for any ulterior one, and … 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…"

The Court noted that it is well established that the "Newbury criteria" also applies when identifying the ambit of "material considerations". This was said to be a logical conclusion because the imposition of a planning condition would necessarily be a material consideration in granting planning permission (at [34]). 

The rationale for applying the "Newbury criteria", when identifying "material considerations" is to ensure that a planning permission is not bought or sold. The Court said that this principled approach prevented a planning authority "from extracting … benefits from a landowner as a condition for granting permission to develop its land, when … benefits [have] no sufficient connection with the proposed use" (at [39]).

The Court held that the promised donations to the community benefit fund did not satisfy the "Newbury criteria". The donations were not in pursuit of any planning purpose and were instead "for the ulterior purpose of providing general benefits to the community" (at [44]). Additionally, the Court said that the community benefit fund did not affect the use of the land, and could only be seen as an inducement to the Council to grant the planning permission. 

Could policy documents be taken into account when determining the meaning of material considerations?

The Appellants argued that the relevant legislation had to be regarded as "always speaking" when determining what is a material consideration. In particular, the Appellants argued that the meaning of "material consideration" had to be updated according to changing government policy (such as the NPPF and the DECC Document). 

The Court rejected this argument stating that to do so was "neither required nor appropriate". In particular, the Court said the following:

  • It was not possible to "override" or "dilute" a statute by general policies laid down by the executive government, nor by policies adopted by local planning authorities (at [42]). 

  • What qualifies as a "material consideration" is a question of law, and judicial interpretation "provides a clear meaning which is principled and stable over time" (at [45]).

  • Parliament may amend the relevant legislative provisions when it considers it necessary to expand the range of factors to be treated as material (at [45]). 

  • In any event, the DECC Document itself said that it had to be read subject to the established legal position on what constitutes a material consideration (at [43]).

Interestingly, the Court said that policy alterations could be relevant when determining whether a local planning authority's decision is so unreasonable that no planning authority, appreciating its duty and applying the facts, could have come to that decision (referred to as the "Wednesbury unreasonable" test). Nevertheless, the Court emphasised that policy changes were not relevant when determining the legal meaning of "material considerations".

Relevance to the Planning Act 2016 (Qld)

This decision is an important reminder when considering the meaning of "any other relevant matter" in section 45(5)(b) of the Planning Act 2016 (Qld) (PA). While the Courts are yet to identify a clear test for what is a "relevant matter" when carrying out an impact assessment, it has been stated that this term is subject to any implied limitation found in the subject matter, scope and purpose of the PA (Ashvan v Brisbane City Council [2019] QPEC 16 at [81]).

While the ambit of what constitutes a "relevant matter" is yet to be fully explored, assessment managers and developers ought to be aware that what is "relevant" will likely depend on whether the matter is for a planning purpose and related to the particular land use. It is also clear that any test will not permit the buying and selling of development approvals.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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