Verdict that council unlawfully allowed £600,000 community benefit to influence wind turbine permission is upheld

A planning permission for a wind turbine breached legal principles intended to ensure that planning decisions were only influenced by land use matters, and not wider community benefits unrelated to the use of the land, the Supreme Court today ruled.

Supreme Court in Westminster, London. Image by alh1, Flickr
Supreme Court in Westminster, London. Image by alh1, Flickr

The court has upheld a January Court of Appeal decision that Forest of Dean District Council had unlawfully granted permission to a 500kw wind turbine at a farm in Tidenham Gloucestershire.

The Appeal Court ruled that the authority had wrongly treated a pledge by operator Resilient Energy Severndale to give £600,000 plus four per cent of expected turnover to the local community as a material consideration.

In today’s judgement, Supreme Court judges ruled that this breached the "Newbury criteria" which were outlined in a 1981 House of Lords judgement.

The criteria held that decisions should be made based only on the planning considerations relevant to the current development, even if the consideration of ulterior purposes may lead to a greater public good.

Today’s judgement said: "The community benefits to be provided by Resilient Severndale did not affect the use of the land.

"Instead, they were proffered as a general inducement to the council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold."

The original application was approved by the council’s planning committee in August 2015 with a condition that the development took place through a community benefit society, in order to provide social, environmental and economic benefits for the local community.

The challenge to the permission was brought by a local resident, resulting in a High Court decision in 2016 to quash the permission.

Commenting on the verdict, Zack Simons, barrister at Landmark Chambers, who represented the local resident, said: "The judgment confirms that for something to be ‘material’ to a planning decision, it must serve a planning purpose and relate to the proposed development.

"That rule protects against planning permissions being bought or sold. On the facts of this case, the ‘donation’ on offer was an attempt to ‘buy the permission’.

"The judgment is essential reading for all planners, particularly in fields like renewable energy where "community benefit packages" are commonplace."

R (on the application of Wright) (Respondent) v Resilient Energy Severndale Ltd and Forest of Dean District Council (Appellants)


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