Forest of Dean District Council and Another v R Peter Wright
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Davis,Lord Justice McFarlane |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2102 |
| Docket Number | Case No: C1/2016/2699 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2017 |
[2017] EWCA Civ 2102
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
THE HON MR JUSTICE DOVE
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff, CF10 1ET
Lord Justice McFarlane
Lord Justice Davis
and
Lord Justice Hickinbottom
Case No: C1/2016/2699
Paul Cairnes QC and James Corbet Burcher (instructed by Helen Blundell, Solicitor Forest of Dean District Council) for the First Appellant
Martin Kingston QC and Jenny Wigley (instructed by Burges Salmon LLP) for the Second Appellant
Neil Cameron QC and Zack Simons (instructed by Harrison Grant Solicitors) for the Respondent
Hearing date: 8 November 2017
Introduction
These appeals raise the single issue of whether, on an application for development proposed to be undertaken by a community benefit society, a proposed donation to the community of a proportion of the turnover derived from the development is a material consideration.
The issue arises in the context of an application to the First Appellant local planning authority ("the Council") by the Second Appellant ("Resilient Severndale") for change of use of agricultural land to wind turbine, and the installation of a single, community-scale 500kW wind turbine at Severndale Farm, Tidenham, Gloucestershire ("the proposed development"). It was proposed that the turbine would be erected and run by a community benefit society, and the application included a promise that an annual donation would be made to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years, to be achieved by way of a condition that the development be undertaken by such a society with the donation as part of the scheme.
The Council granted full planning permission for the proposed development, with such a condition. In doing so, in favour of the proposed development, they expressly took into account the donation. The Respondent ("Mr Wright"), a local resident, sought judicial review of the decision, on the basis that the promised donation was not a material planning consideration, and the Council had acted unlawfully in taking it into account. In his judgment of 9 June 2016, Dove J agreed with that proposition, and quashed the grant of planning permission. In these appeals, the Council and Resilient Severndale contend he was wrong to do so.
Before us, Paul Cairnes QC and James Corbet Burcher of Counsel appeared for the Council, Martin Kingston QC and Jenny Wigley of Counsel for Resilient Severndale, and Neil Cameron QC and Zack Simons of Counsel for Mr Wright.
The Policy Background
The Government wish to encourage renewable energy projects, and consider local communities have a part to play. In October 2014, the Department of Energy and Climate Change published a document entitled "Community Benefits from Onshore Wind Developments: Best Practice Guidance for England" ("the DECC Guidance"), in which the Ministerial Foreword said:
"Communities hosting renewable energy play a vital role in meeting our national need for secure, clean energy and it is absolutely right that they should be recognised and rewarded for their contribution."
The introduction goes on to state that:
"Communities have a unique and exciting opportunity to share in the benefits that their local wind energy resources can bring through effective partnerships with those developing wind energy."
The document describes community benefits, in this context, in the following terms:
"Community benefits can bring tangible rewards to communities which host wind projects, over and above the wider economic, energy security and environmental benefits that arise from those developments. They are an important way of sharing the value that wind energy can bring with the local community.
Community benefits include:
1. Community benefit funds – voluntary monetary payments from an onshore wind developer to the community, usually provided via an annual cash sum, and
2. Benefits in-kind – other voluntary benefits which the developer provides to the community, such as in-kind works, direct funding of projects, one-off funding, local energy discount scheme or any other non-necessary site-specific benefits.
In addition to the above, there can also be:
3. Community investment (Shared ownership) – this is where a community has a financial stake, or investment in a scheme. This can include co-operative schemes and online investment platforms.
4. Socio-economic community benefits – job creation, skills training, apprenticeships, opportunities for educational visits and raising awareness of climate change.
5. Material benefits – derived from actions taken directly related to the development such as improved infrastructure.
This document contains guidance on community benefit funds and benefits in-kind (points 1 and 2). The provision of these community benefits is an entirely voluntary undertaking by wind farm developers. They are not compensation payments.
Material and socio-economic benefits will be considered as part of any planning application for the development and will be determined by local planning authorities. They are not covered by this guidance…".
Prior to the DECC Guidance, many onshore wind developers already provided voluntary contributions in various forms over the lifetime of the project. The document goes on to say:
"The wind industry through RenewableUK has consolidated this voluntary approach by coming together to produce a protocol which commits developers of onshore wind projects above 5MW (megawatts) in England to provide a community benefit package to the value of at least £5,000 per MW of installed capacity per year, index-linked for the operational lifetime of the project.
Community benefits offer a rare opportunity for the local community to access resources, including long-term, reliable and flexible funding to directly enhance their local economy, society and environment….
The best outcomes tend to be achieved when benefits are tailored to the needs of the local community…".
The DECC Guidance refers to a number of case studies where community benefit funds have been set up by wind farm developers, e.g. by West Coast RWE Innogy UK in respect of the Farr Wind Farm in Scotland (£3.5m over the lifetime of the wind farm).
However, the DECC Guidance makes clear the relationship between the guidance it gives in the context of renewable energy policy, and the planning regime. Under the heading "Planning phase guidance; background to community benefits", it states
"This document contains guidance on community benefit funds and benefits-in kind. The provision of these community benefits are entirely voluntary undertakings by wind farm developers and should be related to the needs of the local community.
These community benefits are separate from the planning process and are not relevant to the decision as to whether the planning application for a wind farm should be approved or not – i.e. they are not 'material' to the planning process. This means they should not generally be taken into account by local planning authorities when deciding the outcome of a planning application for a wind farm development.
Currently the only situation in which financial arrangements are considered material to planning is under the Localism Act as amended (2011), which allows a local planning authority to take into account financial benefits where there is a direct connection between the intended use of the funds and the development.
And Planning Practice Guidance [see paragraph 10 below] states, 'Local planning authorities may wish to establish policies which give positive weight to renewable and low carbon energy initiatives which have clear evidence of local community involvement and leadership.
Socio-economic and material benefits from onshore wind developments are types of benefit that can be taken into consideration when a planning application is determined by the local planning authority and are not covered by this Guidance."
In addition, paragraph 97 of the National Planning Policy Framework ("the NPPF") states:
"To help increase the supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources. They should:
• Have a positive strategy to promote energy from renewable and low carbon sources;
• Design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts;
• Consider identifying suitable areas for renewable and low carbon energy sources, and supporting infrastructure, where this would help secure the development of such sources;
• Support community-led initiatives for renewable and low carbon energy, including developments outside such areas being taken forward through neighbourhood planning…".
Planning Practice Guidance: Renewable and low carbon energy (ID: 5-004-20140306) contains guidance in relation to the approach to be taken to community-led renewable energy, which builds on paragraph 97 of the NPPF. Under the heading "What is the role for community led renewable energy initiatives?", it states:
"Community initiatives are likely to play an increasingly important role and should be encouraged as a way of providing positive local benefit from renewable energy development. Further information for communities interested in developing their own initiatives is provided by the Department of Energy and Climate Change. Local planning authorities may wish to...
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