LGSS Law

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Planning permission for wind turbine quashed over £1m community donation

A council unlawfully took account of payments promised by a planning applicant when it granted permission for a wind turbine, the High Court has ruled.

In Wright, R (on the application of) v Forest of Dean District Council & Anor [2016] EWHC 1349 Mr Justice Dove found that Forest of Dean District Council had been wrong to take into account community benefits worth up to £1m promised by developer Resilient Energy Severndale if it were allowed to build a wind turbine.

The donations were to have been administered through a community benefit society formed under the Co-operative and Community Benefit Societies Act 2014.

These 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, the judge said.

“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.”

Sue Clarke, director of developer the Resilience Centre, said: “The ruling relies on established case law for [a] commercial enterprise. The fact that this is a community led project, which would be community owned and operated with the primary purpose of benefiting the community in which it is based, did not result in the project being distinguished from commercial projects by the judge.

“This is despite the desirability of community led projects being the basis of recent changes to planning policy, which also purport to give local people the final say on planning for wind turbines.”

She said the project would be abandoned unless the ruling was overturned on appeal.

Clarke said: “The decision may be celebrated by the small minority who opposed the approved project but in reality we consider this to be a massive loss for the community as a whole and clearly undermines local democracy,”

A Forest of Dean spokesperson said: "The council is disappointed with the judgment and will now take time to consider its position.”

The claimant, Peter Wright, funded his case through the Crowd Justice site. He said on the site that he was one of 100 local residents living near the Severn Estuary who were concerned at the proliferation of turbines in the area.

Mark Smulian

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