In the recent case of the Forest of Dean District Council and Resilient Energy Serverndale Limited v R on the application of Peter Wright [2017] EWCA Cov 2012 the Court were asked to consider whether a 4% of turnover donation to a community fund was a material consideration to be taken into account when granting planning permission.

Resilient Energy Serverndale Limited (“Resilient”) had sought permission for a change of use of agricultural land to a wind turbine.  The turbine was to be installed and run via a community benefit society with a promise that 4% of the turnover over the 25 years lifetime of the development would be made to the local community. 

A condition would be imposed on the permission that the development was to be undertaken by such a society with the donation as part of the scheme. The donation would be allocated by a panel of local individuals and the objective would be to fund any community project.  The judge had been given information and evidence related to a similar project, the donations from which were used to fund such things as a village handyman service, purchase of waterproof clothing for the young to participate in outdoor activities and meals for the old peoples’ local lunch club.

The permission was granted inclusive of the condition and the donation was expressly taken into account in the decision to grant. The minutes from the committee meeting in approving the application recorded “members had included the local community donation fund as a material contribution in favour of the proposals as part and parcel of the basket of socio-economic benefits which were relied upon”.

A local resident sought a judicial review of the Council’s decision on the basis that the donation was not a material planning consideration and the Council had acted unlawfully in taking it into account.  The challenge made was on the basis that the community benefit fund donation did not serve a planning purpose, it was not related to land use and it had no real connection to the proposed development. The case law in the area of what is material and immaterial is well established, most particularly in Newbury District Council v Secretary of State for the Environment [19810 AC 578 (“Newbury”). 

Material considerations

The decision maker has a statutory duty to take all material considerations into account. The question as to what amounts to a material consideration is a matter of law. The weight to be attached to those material considerations is a question for the decision maker. 

Resilient contended that the donation was an offsite benefit serving a planning purpose for the following reasons:

  •  It provided a positive socio-economic impact within a confirmed community-led structure, reasonably proximate to the development itself;
  • it improved the sustainability of communities;
  • it was a beneficial financial result of constraining the development to operate only for the benefit of the community.  The fund was an inextricable part of the scheme and inherent consequence of the development being community led.

The judge was unpersuaded by these arguments. The fact that something may be desirable and funded by the development does not in itself make it a material consideration for planning purposes. An immaterial consideration cannot be made material by aggregating it with other community benefits whether they be material or not.   

Resilient tried to assert a distinction between donations made to the community by a commercial developer and those made by community developers based on the DECC guidance[1].  The judge didn’t agree that the scheme was any different from a commercial scheme and in fact the DECC guidance states that 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”

The Newbury criteria

When a financial contribution is offered by a developer it must be set against the Newbury criteria regardless of how well intentioned or desirable it may be.  In this case, there was to be no restriction on the use of the funds once donated and, whilst the examples of what the community fund could be used for (e.g. to fund waterproof clothing for youngsters) were worthy causes, the Judge envisaged that it would not have any planning purpose or relate to the proposed development.

The Judge consequently dismissed the appeal and held that Dove J in the High Court had been entitled to conclude that “the community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose” and further that there is “no real connection between the development of a wind turbine and the gift of monies to be used for any purposes which appointed members of the community consider their community would derive benefit”

Consequently, the offer of the community benefit fund donation made as part of the proposal should not have been taken into account as a material consideration by the Council.

Voluntary donations cannot be given in the hope of swaying a Council to grant consent and those offering such payments need to be careful that they do not fall foul of challenges or the accusation of an attempt to buy planning permission. 

[1] Community Benefits from Onshore Wind Developments: Best Practice Guidance for England published in October 2014 by Department of Energy and Climate Change.  

About the author

Rebecca Mushing Solicitor

Rebecca advises on various planning and highway matters as well as a variety of commercial property transactions.