Landmark Chambers


Court of Appeal decides that it was unlawful for a planning authority to take into account "community donations" offered by a wind turbine developer

DATE: 14 Dec 2017

The Court of Appeal has upheld the judgment of Dove J in the High Court (please see here for earlier news article) which quashed the Forest of Dean District Council’s grant of planning permission for a wind turbine at Tidenham in Gloucestershire.  The Court dismissed the appeals of the Council and the developer, and held that the Council acted unlawfully by taking account of a proposed “community donation” which was to be derived from the wind turbine’s turnover. The donation was not a material planning consideration.

The donation –to be based upon a proportion of the turbine’s turnover– was to be administered through a Community Benefit Society formed under the Co-operative and Community Benefit Societies Act 2014. It could be used for any purpose from which appointed members of the community considered their area would benefit. The Council accepted that the donation had been taken into account in granting the permission. The question for the Court of Appeal was whether that approach was lawful.

Hickinbottom LJ’s leading judgment distils the principles on what matters may amount to a material planning consideration. The proper approach to materiality remains that set out in Viscount Dilhorne’s speech in Newbury District Council v Secretary of State for the Environment [1981] A.C. 578. The proposed donation failed against those criteria: it was not designed to serve any planning purpose, and there was no real connection between the donation and the wind turbine.

Please click here for the judgment. 

Neil Cameron QC and Zack Simons acted for the successful Respondent, Mr Peter Wright.

Jenny Wigley was junior counsel for the developer, Resilient Energy Severndale Limited.