Planning Law

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Unlawful approach to "community donations" from a developer

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Harrison Grant has acted in resisting an appeal concerning the unlawful approach to "community donations" from a developer.

The Court of Appeal’s judgment today in R (Wright) v Forest of Dean District Council [2017] EWCA Civ 2102 upheld the High Court’s decision and re-affirms a fundamental principle of planning law that, for a consideration to be material, it must have a planning purpose and it must fairly and reasonably relate to the permitted development (see Newbury District Council v Secretary of State for the Environment [1981] A.C. 578.).

The Court of Appeal upheld the High Court’s decision because, in granting planning permission, the Council unlawfully took account of promised annual “community donations” from the developer to the local community. The donations – promised by the applicant to total between £500,000-£1,100,000 – were to be administered through a Community Benefit Society formed under the Co-operative and Community Benefit Societies Act 2014. They could be used for anything, provided that it benefitted the local community in some way. The Council accepted that the donations had been taken into account in granting the permission. The question for the Court was therefore whether that approach was lawful.

The Court of Appeal endorsed the High Court’s extensive review of the authorities on the materiality of “off-site benefits” in planning applications, finding that:

  1. The High Court was correct to find that the proper test for materiality remained the approach in Newbury District Council v Secretary of State for the Environment [1981] A.C. 578. The question is not whether the proffered benefits in question were desirable: it is whether (in planning terms) they are material.
  1. An immaterial consideration cannot be made material by simply aggregating it with other considerations, some of which are or may be material.  Neither the source of the funds nor the fact that a matter is regarded as beneficial to the public make a matter a material consideration for planning purposes. The community donation was not necessary for the purposes of the grant of planning permission nor inherent to the development and so failed the established test of materiality.
  1. There were no particular community benefits to which these donations had to be applied. In this case it is envisaged that the donation will or may fund community causes which have no possible planning purpose or relation to the proposed development. The High Court was therefore correct to find that the community donation did not satisfy the Newbury test of materiality.

A copy of the judgment is available here -

Harry Campbell and Susan Ring acted for the Respondent, Mr Wright