The Queen (on the application of Peter Wright) v Forest of Dean District Council Resilient Energy Severndale Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] EWHC 1349 (Admin) |
| Date | 09 June 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5501/2015 |
2016 EWHC 1349 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
(handed down at Winchester Combined Court)
Mr Justice Dove
Case No: CO/5501/2015
and
Neil Cameron QC and Zack Simons (instructed by Richard Buxton Solicitors) for the claimant
Paul Cairnes QC and James Corbet Burcher (instructed by Solicitor for Forest of Dean District Council) for the defendant
Martin Kingston QC and Jenny Wigley (instructed by Burges Salmon LLP) for the interested party
Hearing date: 21 st April 2016
Judgment Approved by the court
Introduction
This case concerns the question of whether or not an element of the package of socio-economic benefits associated with a wind turbine development, in the form of a local community donation based on turnover generated by the wind turbine, amounts to a material consideration which it was lawful for the defendant to take into account when granting planning permission for the development to the interested party. In addition, the case also concerns whether or not it was lawful to impose a condition requiring the development to be carried out via a community benefit society registered under the Co-operative and Community Benefit Societies Act 2014.
The Facts
On 29 th January 2015 the interested party applied for planning permission to the defendant for a proposal described in the application and the subsequent permission in the following terms:
"Change of use of agricultural land to wind turbine and installation of a wind turbine to generate renewable energy including grid connection and ancillary works."
The application was supported by an Environmental Report produced by the interested party. The project comprised in the application was described in the following terms:
"2.2 Project Description
It is proposed that the project will consist of the installation of a single Community Scale Wind Turbine with a maximum height of 60m to hub height (87m to blade tip). This is the same as for the installed Great Dunkilns turbine at St Briavels. The preferred turbine option is the Enercon E53 turbine or Powerwind 500 (or similar). The turbine will be of 500kW capacity and will follow the community focussed Resilient Energy partnership model established by the Resilience Centre and now recognised as an exemplar for community renewable energy.
The applicants intend to establish a community investment scheme where local people are able to share directly in the project returns.
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).
Aspects of construction and materials will be purchased from by (sic) local suppliers where possible.
It is also our preference that the turbine tower and components would be manufactured by Mabey if possible. To this end we have actively introduced Mabey to a number of turbine manufacturers who have since confirmed Mabey as a supplier."
The Environmental Report also addressed the question of the consultation process for the application, and provided information in relation to a presentation to Tidenham Parish Council. The presentation is described in the following terms:
"An explanation of the overall approach of The Resilience Centre regarding Community Scale renewable energy projects in local Resilient Energy partnerships was also provided, as well as details of the proposed community benefits, including locally owned, decentralised energy generation, local job creation/safeguarding, and an annual community donation based on a scale of 4% of turnover over the 25 year operational lifetime of the project. Projects following the Resilient Energy partnership model include a commitment to maximising local community benefits as for the installed St Briavels Wind Turbine (Resilient Energy Great Dunkilns). It is intended that the proposed Severndale Community Scale Wind Turbine will similarly be opened up for the community to invest in at the development stage. Enabling local people to directly share in the financial returns of the project through investment, combined with a sector leading community donation once the project is operational, is a significant part of the Resilient Energy approach and distinguishes these community energy projects from those which follow a purely commercial development agenda,"
In the section of the Environmental Report dealing with socio-economic benefits the following extracts set out the basis upon which the application was promoted:
"5.9.1 Socio-Economics
The approach of Resilient Energy Severndale involves a partnership between the landholder and the Resilience Centre, based on a shared risk/expenditure basis and an equitable share of the financial rewards following development. The project is designed to help meet the energy needs of the local community (rather than an industrial scale project which far exceeds local energy demand) and furthermore, the ethos of the company is to provide a generous share of the rewards to the community, through providing both an opportunity for local people to invest in the project, and through an annual donation based on approximately 4% of turnover to help build Community Resilience in the locality.
…
The single wind turbine proposal is a partnership with local entrepreneurial farmer, Mr Lyndon Edwards, following the community focussed Resilient Energy model developed by the Resilience Centre; a Forest of Dean based social purpose business. The capital for building the project, should planning consent be issued, will be raised through a Community Energy investment offering which ensures that the largest proportion of money is returned to local people instead of banks. Additionally the local community will receive an annual donation based on approximately 4% of turnover providing up to £500 to help build resilience within the local community over the project's 25 years of operation.
…
The socio economic benefits of the Resilient Energy approach are listed below with further details for each provided in subsequent paragraphs.
• Community Scale Approach – helping meet & not exceed local energy needs
• Generation of clean energy and contributing meaningful amount to CO2 emissions reduction
• Community Focussed Approach – directly and indirectly benefitting the local host community/communities by retaining up to 80% of financial benefits in the local economy
• Contribution to Increased Energy Security for farmers and communities
• Democratic Community Finance Model & Established Community Investment scheme keeping money in local economies supporting the 80% of financial benefits retained locally
• Diversification of income for agricultural holdings sustaining local organic farms
• Creating and safeguarding local jobs; both directly (up to 2 local jobs created directly per turbine) and indirectly (an estimate of 20+ related jobs in the District based on current pipeline).
• Direct opportunities for local suppliers and contractors, Forest EPC, Forest Eco Systems and The Resilience Centre
• Sustainable Community Benefits over life of turbine averaging £40,000/MW installed capacity= 8X latest Government recommendations
• Educational Resource for local schools, site visits & lectures – 180 children visited St Briavels in first 6 months of operation and it is now an annual curriculum fixture
• New opportunities for proactive local businesses in other sectors (eg tourism, accommodation, equipment hire, maintenance, service sectors)
• Retention of a significantly greater proportion of money paid in electricity bills kept within the local economy through back to back power purchase agreement
• Retention of business rates within the District at £6,000/annum
…
Community Focussed Approach – directly and indirectly benefitting the local host community/communities
The Resilient Energy Partnership model results in a fair and equitable distribution of revenue between landowner, community and developer (as outlined in the summary presentation of our overall approach in Section 9 of the Environmental Report). In addition a local community donation based on turnover (not profit) and expected to average £15,000-£20,000 per year for the 25 years operation (around £500,000 per 500kW turbine). The approach far exceeds to latest Government guidance (at around £40,000/MW versus £5,000/MW installed)."
The document concluded in relation to the socio-economic benefits of the proposal in the following terms:
"This planning application is for a temporary consent for a 500kW Community Scale Wind Turbine at Severndale Farm, Tidenham, following the Resilience Centre's award winning Resilient Energy community model which aims to maximise the local economic and social benefits of locally led renewables at minimal environmental impact. The application is for an operational period of 25 years plus a year for construction and a year for decommissioning (i.e. 27 years in total).
…
This project is shown to have strongly positive socio-economic effects (greater than for much larger scale energy generating projects on a per MW installed basis) and the locally based applicants have a strong commitment to maximising local economic benefits. It is the intention of the applicants to make an annual donation to a local Community Fund based on 4% turnover (predicted to average around £15k-£20k per annum over the 25 year lifetime of the 500kW (0.5MW) wind turbine project). This equates to up to £500,000 over 25 years–around 8X the recommendation in the latest Governmental guidance (July 2013) per MW installed. For...
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