Wind farm developer’s planning obligations found to be immaterial

Good Energy Generation Ltd v Secretary of State [2018] EWHC 1270 (Admin) is the latest case to consider the materiality of planning obligations provided under section 106 of the Town and Country Planning Act 1990.  In this case, the developer provided a Community Benefit Fund, Community Investment Scheme and Local Tariff as part of a unilateral undertaking.  The Inspector and subsequently the Secretary of State held that they were immaterial considerations not meeting the three tests under regulation 122 of the Community Infrastructure Regulations 2010 and as such they attracted no weight.  The developer challenged the Secretary of State’s decision in the High Court.  In the course of the litigation, the Court of Appeal concluded in another wind turbine case (Wright v Forest of Dean DC [2017] EWCA Civ 2102) that a Community Benefit Fund was immaterial, and Good Energy Generation Ltd abandoned reliance upon that obligation.  Dismissing the claim, the High Court concluded that the Community Investment Scheme and the Local Tariff were likewise immaterial.  Permission to appeal was refused.  By contrast, the Supreme Court has granted permission to appeal in Wright. Jenny Wigley and Stephen Whale (both of Landmark Chambers) represented the Claimant and the Secretary of State, respectively. For a copy of the Judgment, click here.