Supreme Court to hear case on community benefit fund as material consideration

The Supreme Court has agreed to hear an appeal over whether a local planning authority was entitled to take into account as a material consideration the offer of a community benefit fund donation, it has been reported.

In December last year the Court of Appeal rejected appeals by Forest of Dean District Council and wind turbine developer Resilient Energy Serverndale over the quashing of a planning permission for a change of use of agricultural land to wind turbine, and the installation of a single, community-scale 500kW wind turbine at Severndale Farm, Tidenham, Gloucestershire.

It was proposed that the turbine would be erected and run by a community benefit society, and the application included a promise that an annual donation would be made to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years, to be achieved by way of a condition that the development be undertaken by such a society with the donation as part of the scheme. The donation was estimated to be worth £1m.

The council granted full planning permission for the proposed development, with such a condition. In doing so, in favour of the proposed development, they expressly took into account the donation.

Local resident Peter Wright sought judicial review of the decision, on the basis that the promised donation was not a material planning consideration, and the council had acted unlawfully in taking it into account.

In June 2016 Mr Justice Dove agreed with that proposition, and quashed the grant of planning permission.

The judge said the donations did not meet the criteria for materiality in case law as they were not designed to ameliorate any kind of adverse impact of the development, but could be used for any purpose considered locally beneficial.

“Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination,” he noted, adding that he was “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”.

The judge concluded: “I am satisfied...that 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.”

On appeal, the council and Resilient Severndale contended that the judge had been wrong to quash the planning permission.

However, in December last year the Court of Appeal said Mr Justice Dove’s conclusions were correct, essentially for the reasons he gave.

Lord Justice Hickinbottom said: “Dove J, who referred to and applied the relevant authorities, was right to proceed on the basis that the nature of the community benefit fund donation, and the vehicle it was proposed would provide it, were not such as to preclude examination of the contributions associated with it to see whether they satisfied the legal requirements of being a material consideration in the planning decision.

“He was entitled to conclude that "the community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose" (see [55] of his judgment). He was also entitled to conclude that there is "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" (see [56]).

“Indeed, he was in my view, undoubtedly right to draw such conclusions: and to conclude that, consequently, the Council was not entitled to take into account as a material consideration the offer of the community benefit fund donation made as part of Resilient Severndale's proposal, as it did.”

Resilient Energy’s application to the Supreme Court for permission to appeal was successful earlier this month, Landmark Chambers has said.

“Resilient Energy contends that the community fund is a material consideration, not least because it would further the Government’s legitimate planning policy objective of encouraging local community involvement in renewable energy schemes and providing positive local benefits from renewable energy development,” the set reported.

Jenny Wigley from Landmark is junior Counsel for Resilient Energy.

Neil Cameron QC and Zack Simons, also at Landmark, act for Mr Wright, the original claimant and respondent to the appeal.