The High Court case of Wright, R (on the application of) v Forest of Dean District Council & Anor  concerned whether or not a local community donation, based on turnover generated by a wind turbine, amounted to a material consideration which it was lawful for the council to take into account when granting planning permission for the wind turbine.
The Environmental Report accompanying the planning application had offered benefits including:
“Annual community donations will also be made based typically on 4% of turnover (estimated at an average of around £15k to £20k each year for 25 years of operation – up to £500k to help address current and future community needs)…..”
The main ground of challenge to the permission was that this was not a material consideration that the council could lawfully have taken into account.
The court agreed:
“Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination. It must pass the Newbury test and be for a planning purpose and be fairly and reasonably related to the development proposed. It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine. The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development.”
The council was not entitled to take into account the offer of the local community donation as a material consideration in their planning decision. As a consequence the decision was unlawful.
The court “was not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted.”
The council’s decision should be quashed.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.