Developer’s community contribution – not a “material consideration” for planning permission

The High Court has recently quashed a planning permission for a single wind turbine.

In this case the developer applied for planning permission for the wind turbine. The wind turbine was a single community scale 500KW turbine on agricultural land. The turbine was intended to meet local energy demands and a similar turbine had been installed by the developer on a nearby site. As part of the development the developer offered a package of community benefits including an annual contribution of 4% of turnover. This was not an insignificant amount as the donation was expected to be in the region of £15,000 – £25,000 per year over a 25 year period (the total benefit to the community was estimated to be £500,000 – £1,000,000 over the life of the project).

Planning permission was granted for the wind turbine in September 2015 and the Local Planning Authority (“LPA”) considered the community donation to be a “material consideration”. This decision was challenged by the claimant, Mr Wright, on the basis that the LPA had unlawfully taken the donation in to consideration.

An LPA must have regard to “material considerations” when considering planning permission applications. Material considerations are widely defined as considerations which are relevant to the planning decision in question and will entirely depend on the factual circumstances. The Courts have been asked to decide what is and what is not a “material consideration” on numerous previous occasions.

In this case the Court confirmed that the financial contribution was not material. Following the previous case of Newbury District Council v Secretary of State for the Environment [1981] AC 578, the donation should be for a planning purpose and relate to the proposed development. In this case the donation was intended to be locally administered by the community and applied to community initiatives. The Court decided that there was not a sufficient link between the application of the fund and the wind turbine, regardless of the operation of a similar fund on a nearby development. Whilst defibrillators and proving play groups are commendable contributions, the Court would expect to see something linked to the planning permission. For example when developers build new houses, they provide contributions towards education facilities or employment initiatives.

The Court also followed the case of Sainsbury’s Supermarkets Ltd v Wolverhampton City Council and another [2010] UKSC 20 which requires any off-site financial benefit to be connected with the development – in this case there was no real connection between the turbine and the community benefit fund. The Court considered the contribution to be “untargeted” and “not designed to address a planning purpose”.

So what does this mean for developers? It is unlikely that this case will see the end of community contributions. However, this case serves as a reminder that, if developers want their contributions to be considered in their favour as part of a planning application, the contribution should be related to the land in question and serve a planning purpose.

For more information about any of the issues raised in the article please contact Mark Howard, head of Planning and Environment at Michelmores on mark.howard@michelmores.com