Town and country planning – Planning permission – Material consideration – Respondent objector applying for judicial review of decision of first appellant local authority to grant second appellant planning permission for change of use of agricultural land to wind turbine – Proposal providing for local community donation – Permission granted subject to conditions – Judicial review being granted – Appellants appealing – Whether local community donation constituting relevant consideration – Appeals dismissed
The second appellant applied to the first appellant local authority for planning permission for change of use of agricultural land to installation of a wind turbine to generate renewable energy including grid connection and ancillary works. The application was supported by an Environmental Report and accompanied by a planning statement which dealt with matters associated with planning policy and renewable energy policy and was stated to be one of a new range of community wind projects where the interested party would be offering shares to fund the project to the local community as well as setting up a community fund to be administered by local trustees. The second appellant indicated that the local community would have the opportunity to invest in shares in the scheme with an envisaged return of 7%. In addition, an annual return of approximately 4% of the gross revenues was proposed to be donated to the host community via a Community Fund.
The respondent, a local resident, opposed the development. However, the appellants granted planning permission, subject to a number of conditions. They took into account the local community donation as a positive feature. The respondent applied for judicial review of that decision, on the basis that the promised donation was not a material planning consideration, and the appellants had acted unlawfully in taking it into account. The High Court agreed with that proposition, and quashed the grant of planning permission: [2016] EWHC 1349 (Admin); [2016] PLSCS 165.
The appellants appealed. The single issue was whether, on an application for development proposed to be undertaken by a community benefit society, a proposed donation to the community of a proportion of the turnover derived from the development was a material consideration.
Held: The appeals were dismissed.
(1) A planning decision-maker had a statutory duty to have regard to all material considerations. Whilst the weight to be given to a material consideration was a matter for the decision-maker, what amounted to a material consideration was a question of law for the court to determine. For a consideration to be material, it had to have a planning purpose and it had to fairly and reasonably relate to the permitted development. There had be a real, as opposed to a fanciful, remote, trivial or de minimis, connection with the development (the Newbury criteria). For a benefit to be material, it did not have to be necessary to make the development acceptable in planning terms; although, by section 106 of the Town and Country Planning Act 1990 and regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948), a planning obligation might only be taken into account in the determination of any planning application if it was so necessary. Financial considerations might be relevant to a planning decision. However, something which was funded from the development or otherwise offered by the developer would not, by virtue of that fact alone, be sufficiently related to, or connected with, the development to be a material consideration. Off-site benefits were not necessarily immaterial but might be material if they satisfied the Newbury criteria: Newbury District Council v Secretary of State for the Environment [1981] 1 AC 578 followed.
On a planning application, it would be unlawful for a planning authority to take into consideration a donation to a community benefit fund by a commercial wind farm developer, because such a donation would not be a material consideration. Similarly, an authority could not require such a donation as a planning obligation, whoever the developer might be. An immaterial consideration could not be made material by simply aggregating it with other considerations, some of which were or might be material.
(2) Guidance published by the Department of Energy and Climate Change in October 2014 indicated that community benefits were immaterial to the planning process. There was nothing to suggest that the guidance was referring only to community donations made by commercial, as opposed to community, developers. The guidance did not distinguish between the two and there were usually elements of profit and voluntary contribution in both community and commercial schemes. The promised donation was clearly a community benefit fund donation distinct from the other socio-economic benefits of the development and was therefore not a material planning consideration. Planning policy could not convert an immaterial consideration into a material consideration. Although the NPPF and Planning Practice Guidance encouraged the use of renewable energy, they did not encourage unrestricted gifts of money to the community. A policy that encouraged community involvement in wind farm development would only be a material consideration insofar as it complied with the Newbury criteria: Mitchell v Secretary of State for the Environment (1995) 69 P&CR 60 distinguished.
(3) It was unhelpful to think of a community donation included as part of a planning application as an attempt to “buy” planning permission. No matter how well-intentioned the developer, and however desirable the donation, it would only be material if it satisfied the Newbury criteria. The present donation did not do so. It had no planning purpose and did not relate to the use of the turbine. The operation of a community wind turbine for the financial benefit of the community was not of itself sufficient for the benefit to be a material consideration. The judge had been entitled to conclude that the promised donation was an untargeted contribution of off-site community benefits that was not designed to address a planning purpose and had no real connection with the turbine. It was not a material consideration and the first appellants had not been entitled to take it into account.
Paul Cairnes QC and James Corbet Burcher (instructed by the Forest of Dean District Council) appeared for the first appellants; Martin Kingston QC and Jenny Wigley (instructed by Burges Salmon LLP) appeared for the second appellant; Neil Cameron QC and Zack Simons (instructed by Harrison Grant Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript of R (on the application of Wright) v Forest of Dean District Council
