Supreme Court asserts that planning permission is not for sale

The decision comes after it quashed the grant of planning permission for a wind turbine where the local planning authority deemed that a financial contribution did not satisfy the legal test for being a material consideration.

The Court said the community fund equated to an attempt to buy planning permission.

Background

Forest of Dean District Council had granted planning permission for the change of use of agricultural land to allow the erection of a wind turbine which was to be run by a community benefit society. One of the factors which the Council took into account when making that decision was a promised donation to a local community fund of 4% of the turnover from the development.

A local resident challenged the grant of planning permission on the basis that the contribution was not a legitimate material consideration which could weight in the balance when determining the application but was instead a general inducement to grant planning permission. The High Court agreed and quashed the planning permission. Council and the developer appealed to the Court of Appeal but lost, so they further appealed to the Supreme Court.

Section 38(6) of the Town and Country planning Act 1990 states that: “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.”

Summary

It is clearly understood and generally accepted that planning permissions cannot be bought or sold. But there is scope for uncertainty over what can and what cannot be considered as a material consideration in planning terms and can therefore legitimately be taken into account.

Financial contributions are quite common in planning and s.106 of the Town and Country Planning Act 1990 specifically allows for agreements to be entered into for sums to be paid to the local authority. This is generally used to enable contributions to be paid towards infrastructure required as a result of the development, such as new roads and schools.

However, in the Forest of Dean case, the local resident argued that the contribution was not legitimate as it did not fairly and reasonably relate to the development for which permission was sought and was not proposed as a means of pursuing any proper planning purpose.

The Supreme Court agreed and upheld the decision of both the High Court and the Court of Appeal to quash the planning permission. Read more about the case.

The case does not break any new ground, but it does serve as a useful reminder that planning permissions cannot be bought or sold.

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