Council loses appeal over quashed permission and “unlawful” community donation

The Court of Appeal has rejected appeals by a council and a wind turbine developer over the quashing of a planning permission because the planning committee took into account a proposed donation to the community.

The single issue in Wright, R (on the application of) v Forest of Dean District Council Resilient Energy Serverndale Ltd [2017] EWCA Civ 2102 was whether, on an application for development proposed to be undertaken by a community benefit society, the proposed donation to the community of a proportion of the turnover derived from the development was a material consideration.

Resilient Severndale had applied to Forest of Dean, as local planning authority, for 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.

The respondent, 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.”

In these appeals, the council and Resilient Severndale contended that the judge had been wrong to quash the planning permission.

The Court of Appeal rejected the appeals. 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.”

He added: “Although, out of deference to the arguments put before this court, I have set out my own reasons for upholding the judge below, in my view Dove J's conclusions were correct, essentially for the reasons he gave.”