Planning Permission Up For Sale?

• Published date: 17 May 2023
• Subject Matter: Government, Public Sector, Energy and Natural Resources, Energy Law, Government Contracts, Procurement & PPP
• Law Firm: Herbert Smith Freehills
• Author: Ms Catherine Howard

Emphasising local support secured by economic benefits may be in conflict with the long-standing principle that planning permissions should not be bought and sold.

The December 2022 government consultation on changes to the National Planning Policy Framework closed in March 2023. Supposedly, to encourage such development to come forward, it is proposed that new onshore wind development and the repowering of wind turbines should require "community support". However, an existing community consent requirement for onshore wind development, introduced in 2015, has been the death knell for onshore wind. What has changed?

When the government announced the proposed NPPF changes early in December 2022, it claimed that the new requirement would benefit communities "through lower energy bills", implying that community support would flow from financial reward. However, a fundamental principle of the planning system has always been that planning permissions "cannot be bought or sold". Is this a move towards just that? If so, should we be concerned?

Buying and selling planning permission

When granting planning permission, local planning authorities can only take into account "material" considerations. Newbury District Council v Secretary of State for the Environment [1991] 1 EGLR 175 determined that material considerations must "be for a planning purpose", ie they must "relate to the character of the use of the land". In R (on the application of Wright) v Resilient Energy Severndale Ltd and another [2019] UKSC 53; [2019] EGLR 3, the Supreme Court confirmed that benefits which are "not proposed as a means of pursuing a proper planning purpose but for the ulterior purpose of providing general benefits to the community" would be "a general inducement to the council to grant planning permission", so not permitted.

Unless primary legislation changes this, the only way to get around the principle is to make sure that payments to communities are not required by law. Even if they are made voluntarily, local authorities must not take such payments into account when making decisions on planning applications. However, mostly in the context of infrastructure development but also now elsewhere in national planning policy, developers must increasingly demonstrate "local consent" through communities feeling direct benefits from or compensation for the proposed development. This is uncomfortably close to embracing the concept that planning permissions not just can but should be bought...