In R (Wright) v Forest of Dean District Council [2016] EWHC 1349 (Admin), Mr Justice Dove had to answer the question whether or not an element of the package of socio-economic benefits associated with a wind turbine development, in the form of a local community donation based on turnover generated by the wind turbine, amounted to a material consideration which it was lawful for the defendant to take into account when granting planning permission for the development to the interested party. In addition, the case also concerned whether or not it was lawful to impose a condition requiring the development to be carried out via a community benefit society registered under the Co-operative and Community Benefit Societies Act 2014.
Resilient Energy Severndale Ltd had undertaken to pursue the project through a community benefit society registered under the Co-operative and Community Benefit Societies Act 2014. Local people would be given the opportunity to invest in the scheme and 4% of the profits from power generation would be donated to community projects. The donations promised by the applicant to total between £500,000 and £1,100,000. The council granted planning consent for the 60m turbine, accepting that the donations had been taken into account in granting this permission. A local objector challenged the decision claiming that this approach was unlawful.
The High Court upheld that challenge and noted that it is fundamental that planning permissions are never for sale. The fact that the scheme was community-led did not excuse the local authority from carrying out a full examination of its planning merits. The donations served no planning purpose and did not fairly and reasonably relate to the development itself.
To be material, the donations had to serve a planning purpose and be “fairly and reasonably related to the development proposed”. However, there were no particular community benefits to which these donations had to be applied. They could be used for anything, provided that it benefitted the local community in some way.
That did not meet the test for materiality in the case law. The donations were not designed to ameliorate or address any kind of adverse impact of the development.
Although the various “community matters” to which the donations could have been target are covered in passages of the NPPF, that is not enough to make them material planning considerations. The proper test for materiality remained the approach in Newbury District Council v Secretary of State for the Environment [1981] AC 578.
Planning permission was quashed.
Martha Grekos is a partner and head of planning at Irwin Mitchell
