2nd January 2018
A recent Court of Appeal judgment involving a local planning authority and a wind turbine developer serves as a useful reminder that unspecified community benefits associated with renewables installations cannot carry weight in planning decisions. Furthermore, general Government policy support for a project does not automatically translate to a material planning consideration.
Local resident Peter Wright succeeded in his challenge to overturn Forest of Dean District Council’s grant of planning permission to Resilient Energy Severndale Ltd on the basis that it was legally erroneous of the council to take into account an annual donation, deriving from a wind turbine’s turnover, to a local community fund as a material planning consideration.
The council granted planning permission for a change of land use in Tidenham, Gloucestershire from agricultural to wind power generation and the installation of a single, community-scale 500kW wind turbine.
The main issue with the planning decision was the council attaching weight to the developer’s commitment that a community benefit society would manage the installation and running of the turbine and provide an annual donation to a new local community fund. This donation would be based on four percent of the operation’s turnover year-on-year over its projected 25-year lifecycle. The commitment was reflected in a planning condition attached to the grant of permission.
In response to the legal challenge the developer argued, among other things, that the planning purpose was clear from the socio-economic benefit arising from the creation of the fund. The requirement related to the development because it would operate only for the benefit of the community.
The Court of Appeal rejected these points and robustly applied the existing law that to be material, a planning consideration had to have a planning purpose and should fairly and reasonably relate to the development.
The court accepted that the developer was well-intentioned and that the fund would benefit the community, but found that the proposal was ultimately a commercial development. The fund’s distribution would not be restricted to use for planning purposes. The provision of waterproofs for young people and the provision of lunches for the local elderly community were not considered to address any tangible planning purpose.
Significantly, the court rejected the argument that the council was entitled to take into account the evolution of Government policy towards voluntary payments, which the developer argued should be mirrored by a change in approach to material considerations. The developer attempted to draw an interesting analogy with the development of policy in connection with affordable housing over the last 30 years, which the court was swift to reject.
Instead, the court found that the fund fell within the definition of “community benefit fund” given in the former Department of Energy & Climate Change’s Guidance “Community benefits from onshore wind developments: Best practice guidance for England”. These benefits, described as “voluntary payments from an onshore wind developer to the community, usually provided via an annual cash sum” did not however fall within the definition of “socio-economic community benefits” that could lawfully be treated as material planning considerations in accordance with paragraph 97 of the National Planning Policy Framework and the associated Planning Practice Guidance at the date of the planning decision.
This case is a reminder to all actors in the renewables economy that there is a fine line to be drawn between general policy support for a project and those aspects of policy that can amount to material planning considerations as a matter of law. Considering the issues at the outset will ensure that developers have the information to guide local planning authorities to make determinations that are legally robust and in line with the latest case law.
To discuss any of the planning-related issues covered in this article, please contact Matt Gilks or another member of Thrings’ Planning team. For more information about renewable energy, please contact Helen Rumford, Head of Renewables at Thrings.