In the present case, the community benefits promised by Resilient Severndale did not satisfy the Newbury criteria and hence did not qualify as a material consideration within the meaning of that term in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. Dove J and the Court of Appeal were right so to hold. The benefits were not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general benefits to the community. Moreover, they did not fairly and reasonably relate to the development for which permission was sought. Resilient Severndale required planning permission for the carrying out of “development” of the land in question, as that term is defined in section 55(1) of the 1990 Act. The community benefits to be provided by Resilient Severndale did not affect the use of the land. Instead, they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold. This is so whether the development scheme is regarded as commercial and profit-making in nature, as Hickinbottom LJ thought it was (para 39), or as a purely community-run scheme to create community benefits.
For the reasons given above, I would dismiss this appeal. I would resist Mr Kimblin’s invitation on behalf of the Secretary of State that we should “update Newbury”. In deciding to grant planning permission for the development, the Council relied on matters which do not qualify as “material considerations” for the purposes of section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. That means that the grant of planning permission has rightly been quashed. It is unnecessary to give separate consideration to condition 28. The imposition of that condition cannot make an immaterial consideration into a material consideration within the meaning of the statutory provisions.