Town and country planning – Planning permission – Material consideration – Claimant objector challenging decision of defendant local authority to grant interested party planning permission for change of use of agricultural land to wind turbine – Proposal providing for local community donation – Permission being granted subject to conditions – Whether local community donation constituting relevant consideration – Application granted
The interested party applied for planning permission to the defendant local authority for a 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 interested party 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 claimant objected and made representations opposing the development. However, the defendants granted planning permission, subject to a number of conditions. They took into account the local community donation as a positive feature. The claimant applied for judicial review of that decision.
The questions for determination included 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 defendants to take into account when granting planning permission.
Held: The application was granted.
(1) It was no part of the legal test for materiality to consider whether the contribution was necessary or required. Such an additional gloss was specifically rejected in the cases of R v Plymouth City Council, ex p Plymouth & South Devon Co-operative Society Ltd [1993] 2 EGLR 206 and Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147. It was clear that in applying the test from Newbury District Council v Secretary of State for the Environment [1981] 1 AC 578, the community donation neither served a planning purpose nor fairly and reasonably related to the development proposed. It was irrelevant to the issues engaged by the exercise of land use planning or development control in determining the interested party’s application. It was important to appreciate the essentially open-ended nature of the purposes to which the community donation could be applied: the sole constraint was that the purpose of any grant was for some form of community benefit as determined by those appointed from the community to administer the fund. The community donation was an untargeted contribution of off-site community benefits which was not designed to address a planning purpose.
(2) Applying the principles set out by Lord Collins in the case of R (on the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] 2 EGLR 103, this was an off-site contribution and therefore engaged the principle that off-site benefits related to or connected with the development would be material. As such it was essential for the off-site benefits to have a real and not a remote or fanciful connection with the development. There was no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit.
(3) The question of whether the local community donation was a material consideration was a question of law for the court. It was unclear from the inspector’s decision whether he was directly referring to the local community donation and it certainly did not seem from his reasoning that the legality or materiality of the local community donation was a significant issue in the case before him. He dealt globally with the socio-economic benefits and, as the claimant accepted, the other socio-economic benefits claimed were undoubtedly material considerations to be placed in the planning balance. Similarly the claimant’s reliance upon the planning statement to the effect that the local community donation should not be given any weight, was of little moment in determining the legal issues that arose and had to be determined on the basis of the application of the relevant legal principles. In all the circumstances, the defendant was not entitled to take into account as a material consideration in their planning decision the offer of the local community donation made by the interested party as part of their proposal. As a consequence the decision which they reached was unlawful.
(4) The invitation by the defendants and the interested party to refuse relief in the exercise of the court’s discretion under section 31(2A) of the Senior Courts Act 1981 on the basis that the outcome of the decision would not have been substantially different if the error by the defendants had not been made would be rejected. It was clear from both the officer’s report and the members’ debate and voting that this was a balanced decision which could have been determined either way. The court was not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted. The appropriate outcome was that the defendant’s decision should be quashed.
Neil Cameron QC and Zack Simons (instructed by Richard Buxton Solicitors) appeared for the claimant; Paul Cairnes QC and James Corbet Burcher (instructed by the Forest of Dean District Council) appeared for the defendants; Martin Kingston QC and Jenny Wigley (instructed by Burges Salmon LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Wright) v Forest of Dean District Council
