R (on the application of Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council

JurisdictionEngland & Wales
JudgeLord Thomas,Lord Reed,Lady Hale,Lord Lloyd-Jones,Lord Sales
Judgment Date20 November 2019
Neutral Citation[2019] UKSC 53
CourtSupreme Court
Year2017
Date2017
R (on the application of Wright)
(Respondent)
and
Resilient Energy Severndale Ltd and Forest of Dean District Council
(Appellants)

[2019] UKSC 53

before

Lady Hale, President

Lord Reed, Deputy President

Lord Lloyd-Jones

Lord Sales

Lord Thomas

Supreme Court

Michaelmas Term

On appeal from: [2017] EWCA Civ 2102

Appellant (1)

Martin Kingston QC

Jenny Wigley

(Instructed by Burges Salmon LLP (Bristol))

Appellant (2)

Paul Cairnes QC

James Corbet Burcher

(Instructed by Forest of Dean District Council)

Respondent

Neil Cameron QC

Zack Simons

(Instructed by Harrison Grant)

Intervener (Secretary of State for Housing, Communities and Local Government)

Richard Kimblin QC

(Instructed by The Government Legal Department)

Appellants:

(1) Resilient Energy Severndale Ltd

(2) Forest of Dean District Council

Heard on 22 and 23 July 2019

Lord Sales

( with whom Lady Hale, Lord Reed, Lord Lloyd-Jones and Lord Thomas agree)

1

This case concerns a challenge by the respondent (“Mr Wright”) to the grant of planning permission by the local planning authority (the second appellant: “the Council”) for the change of use of land at Severndale Farm, Tidenham, Gloucestershire from agriculture to the erection of a single community scale 500kW wind turbine for the generation of electricity (“the development”). Mr Wright is a local resident. The first appellant (“Resilient Severndale”) was the successful applicant for the planning permission.

2

In its application for planning permission, Resilient Severndale proposed that the wind turbine would be erected and run by a community benefit society. The application included a promise that an annual donation would be made to a local community fund, based on 4% of the society's turnover from the operation of the turbine over its projected life of 25 years (“the community fund donation”). In deciding to grant planning permission for the development the Council expressly took into account the community fund donation. The Council imposed a condition (“condition 28”) that the development be undertaken by a community benefit society with the community fund donation as part of the scheme.

3

Mr Wright challenged the grant of planning permission on the grounds that the promised community fund donation was not a material planning consideration and the Council had acted unlawfully by taking it into account. Mr Wright succeeded in his challenge before Dove J at first instance. The Court of Appeal dismissed an appeal by Resilient Severndale and the Council. They now appeal to this court.

4

The issue on the appeal is whether the promise to provide a community fund donation qualifies as a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 as amended (“the 1990 Act”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). These are very familiar provisions in planning law. There is also a subsidiary issue whether the Council was entitled to include condition 28 in the planning permission.

5

Section 70(1) of the 1990 Act provides in relevant part:

“Where an application is made to a local planning authority for planning permission —

… they may grant planning permission, either unconditionally or subject to such conditions as they think fit …”

6

Section 70(2) of the 1990 Act provides:

“In dealing with an application for planning permission or permission in principle the authority shall have regard to —

(a) the provisions of the development plan, so far as material to the application,

(aza) a post-examination draft neighbourhood development plan, so far as material to the application,

(aa) any considerations relating to the use of the Welsh language, so far as material to the application;

(b) any local finance considerations, so far as material to the application, and

(c) any other material considerations.”

7

Section 38(6) of the 2004 Act provides:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

Policy background
8

The land in question is agricultural and is not designated for development in the development plan for the area. The proposed development is not in accordance with the development plan.

9

Paragraph 97 of the National Planning Policy Framework (March 2012) in force at the relevant time (“NPPF”) states:

“To help increase the use and 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 …”

10

Planning Policy Guidance has been issued to expand upon the guidance in the NPPF regarding renewable and low carbon energy (reference ID: 5-004-20140306, revision date 6 March 2014 — “the PPG”) as follows:

“What is the role for community led renewable energy initiatives?

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 establish policies which give positive weight to renewable and low carbon energy initiatives which have clear evidence of local community involvement and leadership.

Neighbourhood plans are an opportunity for communities to plan for community led renewable energy developments. Neighbourhood Development Orders and Community Right to Build Orders can be used to grant planning permission for renewable energy development. To support community based initiatives a local planning authority should set out clearly any strategic policies that those producing neighbourhood plans or Orders will need to consider when developing proposals that address renewable energy development. Local planning authorities should also share relevant evidence that may assist those producing a neighbourhood plan or Order, as part of their duty to advise or assist. As part of a neighbourhood plan, communities can also look at developing a community energy plan to underpin the neighbourhood plan.”

11

In October 2014, the Department of Energy and Climate Change published a document containing general guidance with the title, “Community Benefits from Onshore Wind Developments: Best Practice Guidance for England” (“the DECC Guidance”). The object of the DECC Guidance was to set out principles of good practice applicable through the preparation and planning phases and on to the operational phase for onshore wind energy developments, with the aim of securing local community acceptance and support for such developments. It was published alongside a document entitled “Best Practice Guidance on Community Engagement”.

12

The Ministerial foreword to the DECC Guidance included the following:

“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.”

13

The Introduction stated:

“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 projects.”

14

Under the heading “What are community benefits?”, the Introduction continued as follows:

“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 …”

15

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