The Supreme Court has upheld the judgments of Dove J in the High Court and the Court of Appeal which quashed the Forest of Dean District Council’s grant of planning permission for a wind turbine at Tidenham in Gloucestershire. The Supreme 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 Supreme Court was whether that approach was lawful.
Lord Sales’ 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  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.
The Supreme Court did not follow the Secretary of State’s invitation to update the Newbury in line with the tests in Regulation 122(2) of the Community Infrastructure Levy Regulations 2010.
The judgment is available here.
The press summary is available here.
Jenny Wigley acted for the Appellant.