Community contribution from turbine held an unlawful inducement

A Gloucestershire council should not have considered a developer's contribution to a community fund when granting permission for a wind turbine, the Supreme Court has ruled.

The 500kW turbine was to be operated by a company that had developed a model for investment in community projects associated with renewable energy schemes. It proposed that four per cent of annual turnover from the scheme, equating to £1.1 million, would be paid towards supporting benefits in the community. A planning officer’s report concluded that this offer was a material consideration.

The council imposed a condition on the resultant permission stating that the development should be undertaken via a community benefit society registered with the Financial Conduct Authority under the Co-operative and Community Benefit Societies Act 2014. A local resident challenged this decision. The High Court and the Court of Appeal agreed that the financial contribution was not a material consideration that should have been taken into account in deciding to grant permission.

In the Supreme Court, Lord Sales noted that the Department of Energy and Climate Change had published guidance advising that any community benefits from onshore wind developments are separate from the planning process and are not relevant in deciding whether permission should be granted. He observed that the legal context for determining what constitutes a material consideration is well established following the judgment in Newbury District Council v Secretary of State for the Environment [1981].

Planning permission cannot be bought or sold, the judge emphasised. He noted that a principled approach has been consistently endorsed by a raft of judgments confirming that local planning authorities cannot extract money or other benefits from developers in return for granting planning permission. Neither can a developer offer an inducement as a means by which permission could be secured, he added.

In respect of the development under consideration, the court concluded that it did not meet the Newbury criteria because the benefits were not proposed as a means of pursuing any proper planning purpose. They did not fairly and reasonably relate to the scheme and did not seek to mitigate any adverse effects associated with it during construction or operation, it held. In short, it concluded, the offer constituted an unlawful method for seeking to buy permission. The consent had rightly been quashed by the Court of Appeal, it confirmed.

Wright v Resilient Energy Severndale Ltd and Forest of Dean District Council

Date: 20 November 2019

Ref: [2019] UKSC 53

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