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Wright, R (on the application of Wright) v Resilient Energy Severndale Ltd & Anor -
Factual and Procedural Background
Company A applied to the Local Authority for planning permission to erect a 500 kW community-scale wind turbine on agricultural land in The County. The application promised that a community benefit society would operate the turbine and would pay 4 % of turnover into a local community fund for 25 years. The Local Authority treated that promised donation as a factor weighing in favour of the scheme and granted permission subject to Condition 28, which required the project to be carried out by a community benefit society.
The Respondent, a nearby resident, sought judicial review, arguing that the donation was not a material planning consideration. Judge Dove quashed the permission. The Court of Appeal (Judge Hickinbottom, Judge McFarlane and Judge Davis) dismissed appeals by Company A and the Local Authority. They appealed to the Supreme Court, where Judge Sales delivered the lead judgment (with four other judges concurring).
Legal Issues Presented
- Whether the promise of a community fund donation is a “material consideration” under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.
- Consequently, whether Condition 28—requiring involvement of a community benefit society—was lawful.
Arguments of the Parties
Appellants' Arguments (Company A and Local Authority)
- The donation should be regarded as material because modern policy encourages community-led renewable energy and associated community benefits.
- The statutory phrase “material consideration” is “always speaking”; its scope evolves with contemporary planning policy.
- Condition 28 lawfully secured the promised benefits and therefore demonstrated their materiality.
Respondent's Arguments
- The donation serves an ulterior purpose—providing general community largesse—and does not relate to the use of the land.
- Established authority bars the buying or selling of planning permission; the Newbury criteria remain the controlling test.
- Condition 28 cannot convert an immaterial promise into a material one.
Intervenor (Secretary of State)
- Supported the Appellants and invited the Court to “update” the Newbury test to reflect an expanded, modern understanding of planning purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Newbury District Council v Secretary of State for the Environment [1981] AC 578 | Three-fold test: (1) planning purpose, (2) fair and reasonable relation to development, (3) not Wednesbury unreasonable. | Treated as the governing test for identifying material considerations; donation failed criteria 1 and 2. |
| Westminster City Council v Great Portland Estates Plc [1985] AC 661 | A “material consideration” must relate to the character of the land use. | Confirmed Newbury approach; donation unrelated to land-use character. |
| Pyx Granite Co Ltd v Ministry of Housing & Local Government [1958] 1 QB 554 | Conditions must not pursue an ulterior object. | Supported finding that the donation pursued an ulterior community-funding purpose. |
| Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 | Legitimacy of conditions linked to land use and policy context. | Cited to reject the argument that policy can redefine “material consideration.” |
| Mixnam's Properties Ltd v Chertsey UDC [1965] AC 735 | Limits on conditional powers mirror limits on material considerations. | Used to reinforce Newbury test. |
| R v Plymouth CC, Ex p Plymouth & South Devon Co-operative Society Ltd (1993) 67 P&CR 78 | Off-site benefits can be material only if sufficiently connected to development. | Contrasted with present facts; here, connection was absent. |
| Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 | Weight of material consideration is for decision-maker, but its existence is a question of law. | Relied on to affirm court’s duty to police limits of materiality. |
| R (Sainsbury’s) v Wolverhampton CC [2010] UKSC 20 | Re-affirmed Newbury criteria after Human Rights Act era. | Cited as recent Supreme Court endorsement of orthodox test. |
| Elsick Development Co Ltd v Aberdeen SDP Authority [2017] UKSC 66 | Planning obligations must relate to development; prevents “buying” permission. | Provided modern confirmation of orthodox rule; parallels donation scenario. |
| East Barnet UDC v British Transport Commission [1962] 2 QB 484 | Focus on character of land use, not occupier’s purpose. | Supported reasoning that donation unlinked to land use. |
| City of Bradford MC v Secretary of State for the Environment (1986) 53 P&CR 55 | “Planning permission cannot be bought or sold.” | Applied directly to reject inducement nature of donation. |
| R v Hillingdon LBC, Ex p Royco Homes Ltd [1974] QB 720 | Wednesbury unreasonableness of occupancy conditions. | Discussed to illustrate policy-driven developments of Wednesbury limb. |
| Mitchell v Secretary of State for the Environment (1995) 69 P&CR 60 | Need for affordable housing can justify refusal where linked to land use. | Used to contrast cases where policy supports land-linked considerations. |
| R (Copeland) v LB Tower Hamlets [2010] EWHC 1845 | Healthy-eating policy can be material where it affects land use. | Highlighted difference between land-use matters and pure financial inducements. |
| R (Welcome Break) v Stroud DC [2012] EWHC 140 | Local employment obligations may be material if related to site use. | Cited to show acceptable nexus scenarios absent here. |
| Verdin v Secretary of State for Communities [2017] EWHC 2079 | Local procurement conditions need policy and land-use linkage. | Distinguished on basis of missing linkage in present case. |
| R (Working Title Films Ltd) v Westminster CC [2016] EWHC 1855 | Community facility obligations can offset affordable-housing deficits when linked to site. | Contrasted with general donation here. |
| Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 | Standard for unreasonableness in administrative law. | Framed discussion of third Newbury limb. |
| Tesco Stores Ltd v Secretary of State (1994) 68 P&CR 219 (CA) | Payment obligations must relate to development to avoid “buying” permission. | Approved passage quoted with approval to bolster reasoning. |
Court's Reasoning and Analysis
1. The Court re-affirmed that the meaning of “material consideration” is fixed by statute as interpreted in Newbury and allied authority, not by evolving policy documents.
2. It endorsed the logical symmetry between (a) the power to impose conditions and (b) the matters that may be weighed in deciding whether to grant permission.
3. Applying the Newbury criteria, the promised donation: (i) served an ulterior purpose of community largesse rather than a planning purpose; and (ii) lacked a fair and reasonable relationship to the land’s proposed use. Therefore it was immaterial.
4. Accepting such a payment would amount to “buying” planning permission, a practice long prohibited to protect both landowners and the public interest.
5. Policy documents such as the National Planning Policy Framework and departmental guidance cannot override statutory interpretation; they cannot broaden the legal concept of materiality.
6. Because the donation was immaterial, Condition 28—designed to secure it—could not cure the defect; a condition cannot convert an unlawful consideration into a lawful one.
7. The invitation to “update” Newbury was rejected; Parliament, not policy, must enlarge the statutory list of considerations, as demonstrated when it expressly added Welsh-language factors.
Holding and Implications
Appeal DISMISSED. The planning permission remains quashed.
Implications: The decision reconfirms that financial or other inducements unconnected to land-use cannot be treated as material considerations. Local planning authorities must continue to apply the Newbury criteria strictly; community benefit payments, however desirable, cannot lawfully influence planning outcomes unless they relate directly to the use or development of the land. No new precedent was set; the Court reinforced existing doctrine.
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