Out-Law News | 15 Jun 2016 | 10:31 am | 4 min. read
Mr Justice Dove said that the anticipated community donation was not a 'material consideration' that Forest of Dean district council as the local planning authority was lawfully entitled to take into account. To be 'material', something must be "for a planning purpose and be fairly and reasonably related to the development proposed", he said.
"It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine," he said. "The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development."
Because the council took the anticipated donation into account, its decision was unlawful and had to be overturned, the judge ruled.
The grant of planning permission for a 60 metre 'community scale wind turbine', capable of generating up to 500 kilowatts, had been challenged by a local resident. The turbine was to be built and operated by Resilient Energy Severndale Ltd using a "community-focussed partnership model" it had already used in other parts of the country. The model anticipated investment in the turbine by the local community, which would then be able to share directly in the project returns.
The project would also have involved an annual "community donation" of around 4% of turnover each year for the lifetime of the project, estimated at an average of £15,000 - £20,000 each year for 25 years of operation. This money was to be used to "help address current and future community needs". The court heard how the donation from a similar project in nearby St Briavels had been used for things "including a defibrillator for the village halls, a Senior Citizens trip to Westonbirt Arboretum, installation of heaters in the St Briavels Church, playgroup equipment amongst others".
Decisions about whether to grant or refuse planning permission in England are governed by the 1990 Town and Country Planning Act. This requires local authorities to make their decisions based on their development plans, and to have regard to 'local finance' and 'any other material considerations'. Whether something is a material consideration has been considered at length by the courts, and depends on whether it is for a planning purpose and whether it fairly and reasonably relates to the proposed development. The purpose of this test is to ensure that planning permission cannot be bought or sold, according to the judge in this case.
Mr Justice Dove said that it was particularly important to weigh up the connection with the proposed development when the benefits on offer from the developer were "off-site", as in this case. Previous cases made it clear that off-site benefits would "only be material where they are related to or connected with the development".
"As Lord Collins [in a previous case] observed this is not a question of fact and degree," said Mr Justice Dove. "It is a legal requirement that there is a real, as opposed to fanciful or remote, connection between the suggested off-site benefits and the development. It is this principle that is particularly in play in the contentions raised [here]."
The developer had argued that the community benefits it had proposed were in line with recent government policy announcements, in particular its 'Community Energy Strategy' of January 2014. This document "[placed] communities at the heart of the debate as to how to engage local people in the energy process", according to its planning application. However, the judge said that policy alone could not make something a 'material consideration' "if, as a matter of law, it is not".
"The consideration must pass the legal tests set out above before it can legitimately be taken into account by the decision-maker," the judge said. "When the policy refers therefore, for instance, to taking account of local strategies to improve health, social and cultural well-being it intends that that should be done in the context of the lawful regulation of land use. It does not mean that any matter or proposal touching on issues of health and social and cultural well-being will inevitably be a material consideration in development control or forward planning."
"I am unable to accept that the fact that the proposal is community-led precludes or renders unnecessary an examination of the contributions associated with it to see whether or not they satisfy the legal requirements of being a material consideration in the planning decision. There is no doubt that support for a development, like opposition, is capable of being a material consideration in the planning process when it is based on valid planning considerations ... However, I have no doubt that it is still incumbent upon the decision-maker to scrutinise all elements of the development proposed and its package of benefits to establish in relation to each of them that they pass the legal test of properly amounting to a material consideration," he said.
Jennifer Holgate, planning expert at Pinsent Masons, the law firm behind Out-Law.com, said: "in the words of Mr Justice Dove the law is well settled on this specific point. Nonetheless, recent policy drivers clearly favour community benefit packages for local residents, even if they make clear that this is not, on its face at least, relevant to the planning application process. This case demonstrates the clear tension between the policy concerns regarding community benefits and the stricter interpretation of what a local planning authority must weigh out before them when determining a planning application".