ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
THE HON MR JUSTICE DOVE
2 Park Street, Cardiff, CF10 1ET
B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE HICKINBOTTOM
| FOREST OF DEAN DISTRICT COUNCIL
RESILIENT ENERGY SERVERNDALE LIMITED
|- and -
THE QUEEN ON THE APPLICATION OF
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
Crown Copyright ©
Lord Justice Hickinbottom:
The Policy Background
"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."
"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…".
"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).
"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."
"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…".
"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."
The Factual Background
i) The wind turbine is of "community scale", i.e. it meets or helps to meet local energy needs, but does not seek to maximise output or exceed those needs.
ii) Through back-to-back power purchase arrangements, it both reduces the costs of energy locally and retains a greater proportion of money paid in power bills within the local economy.
iii) It retains business rates within the district.
iv) It creates local jobs directly and indirectly.
v) It provides a local educational resource.
"Sustainable Community Benefits over life of turbine averaging £40,000/MW installed capacity = 8X latest Government recommendations."
That needs a little explanation. As I have described, the DECC Guidance refers to a protocol which commits developers of wind farms with a capacity of more than 5MW to provide a community benefit package of £5,000 per MW of installed capacity each year (see paragraph 7 above). A commitment was proposed here, where the proposed development was for only 0.5MW, of a donation to a community benefit fund of 4% of turnover or approximately £20,000 per year, equivalent to £40,000 per MW (i.e. eight times the protocol level).
"The development is to be undertaken via a Community Benefit Society set up for the benefit of the community and registered with the Financial Conduct Authority under the Co-Operative and Community Benefit Societies Act 2014. Details of the Society number to be provided to the local planning authority prior to commencement of construction.
Reason: to ensure the project delivers social, environmental and economic benefits for the communities of Tidenham and the broader Forest of Dean."
That was the vehicle for ensuring that the promised community benefit fund would be delivered.
i) A planning decision-maker has a statutory duty to have regard to all material considerations; and to have no regard to considerations which are not material. Whilst the weight to be given to a material consideration is a matter for the decision-maker, what amounts to a material consideration is a question of law for the court to determine.
ii) The fact that a matter may be regarded as desirable (for example, as being of benefit to the local community or wider public) does not in itself make that matter a material consideration for planning purposes. For a consideration to be material, it must have a planning purpose (i.e. it must relate to the character or the use of land, and not be solely for some other purpose no matter how well-intentioned and desirable that purpose may be); and it must fairly and reasonably relate to the permitted development (i.e. there must be a real – as opposed to a fanciful, remote, trivial or de minimis – connection with the development). These criteria of materiality, oft-cited since, are derived from the speech of Viscount Dilhorne in Newbury at page 599H, and known as "the Newbury criteria". They were very recently confirmed by the Supreme Court in Aberdeen (at  per Lord Hodge JSC, giving the judgment of the court).
iii) For a benefit to be material, it does not have to be necessary to make the development acceptable in planning terms; although, by section 106 of the Town and Country Planning Act 1990 and regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948), a planning obligation may only be taken into account in the determination of any planning application if it is so necessary. Although paragraph 206 of the NPPF provides that "planning conditions should only be imposed where they are necessary…", the statutory requirement for necessity does not apply to the attachment of a condition to the grant of planning permission.
iv) Financial considerations may be relevant to a planning decision. For example, financial dependency of one part of a composite development on another part may be material, as may financial viability if it relates to the development. However, something which is funded from the development or otherwise offered by the developer will not, by virtue of that fact alone, be sufficiently related to, or connected with, the development to be a material consideration.
v) Off-site benefits are not necessarily immaterial. An off-site benefit may be material if it satisfies the Newbury criteria.
The Appellant's Case
"12. By letter of 15 July, [Resilient Severndale] confirmed:
- The project would be brought forward by a community benefit society.
- Separately to this, £500,000 would be donated to the local community over a period of 20 years.
[Resilient Severndale] confirmed on 7 August 2015 that it would accept a condition securing the first of the above. Only this matter, not the community fund, is covered by condition 28 which the Committee elected to impose. In this letter [Resilient Severndale]… challenged the approach of the officers to date in failing to refer properly to the social and economic benefits of the project.
13. It is important to be aware that throughout the application process there was a clear distinction made between:
(a) the establishment of a community investment scheme; and
(b) the annual community donation.
14. In this way the Committee were being directed to clear and demonstrable social and economic impacts on the local community (in this case beneficial) on the understanding that they, the Committee members, were entitled to take these benefits into account."
Lord Justice Davis :
Lord Justice McFarlane :