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Wind turbine permission quashed for unlawful approach to "community donations"

DATE: 09 Jun 2016

  1. Dove J’s judgment today in R (Wright) v Forest of Dean District Council [2016] EWHC 1349 (Admin) re-affirms a fundamental principle of planning law that, as Lloyd LJ put it in City of Bradford Metropolitan Council v Secretary of State [1987] 53 P&CR 55, “planning consent cannot be bought or sold”.
  2. The Court quashed a planning permission for a wind turbine in the Forest of Dean because, in granting the permission, the Council unlawfully took account of promised annual “community donations” from the operator of the turbine to the local community.
  3. The donations – promised by the applicant to total between £500,000 - £1,100,000 – were to be administered through a Community Benefit Society formed under the Co-operative and Community Benefit Societies Act 2014. The Council accepted that the donations had been taken into account in granting the permission. The question for the Court was whether that approach was lawful.
  4. Dove J conducted an extensive review of the authorities on the materiality of “off-site benefits” in planning applications, finding that:
    • To be material, the donations had to serve a planning purpose and be “fairly and reasonably related to the development proposed”.
    • However, there were no particular community benefits to which these donations had to be applied. They could be used for anything, provided that it benefitted the local community in some way.
    • That did not meet the test for materiality in the caselaw. The donations were not designed to ameliorate or address any kind of adverse impact of the development.
    • Although the various “community matters” to which the donations could have been target are covered in passages of the NPPF, that is not enough to make them material planning considerations. The proper test for materiality remained the approach in Newbury District Council v Secretary of State for the Environment [1981] A.C. 578. 

A copy of the judgment is available here

Neil Cameron QC and Zack Simons represented the Claimant.