Full Text of Court of Appeal Judgement Against Stroat Wind Turbine 14-Dec-2017 …

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Full Text of Court of Appeal Judgement Against Stroat Wind Turbine 14-Dec-2017 …
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Hi,

WT – Judgment – 14-Dec-2017[15953]

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Neutral Citation Number: [2017] EWCA Civ 2102
Case No: C1/2016/2699

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN’S BENCH DIVISION (PLANNING COURT)

THE HON MR JUSTICE DOVE

[2016] EWHC 1349 (Admin)

Cardiff Civil and Family Justice Centre

2 Park Street, Cardiff, CF10 1ET

 

Date: 14/12/17

Before :

 

LORD JUSTICE McFARLANE

 

LORD JUSTICE DAVIS

and

LORD JUSTICE HICKINBOTTOM

– – – – – – – – – – – – – – – – – – – – –

 

Between :

 

  (1)   FOREST OF DEAN DISTRICT COUNCIL

(2)   RESILIENT ENERGY SERVERNDALE LIMITED

 

 

 

Appellants

  – and –  
   

THE QUEEN ON THE APPLICATION OF

PETER WRIGHT

 

 

 

Respondent

 

– – – – – – – – – – – – – – – – – – – – –

– – – – – – – – – – – – – – – – – – – – –

 

Paul Cairnes QC and James Corbet Burcher (instructed by Helen Blundell,

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

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

 

 

 

 

Lord Justice Hickinbottom:

 

Introduction

  1. These appeals raise the single issue of whether, on an application for development proposed to be undertaken by a community benefit society, a proposed donation to the community of a proportion of the turnover derived from the development is a material consideration.
  2. The issue arises in the context of an application to the First Appellant local planning authority (“the Council”) by the Second Appellant (“Resilient Severndale”) for change of use of agricultural land to wind turbine, and the installation of a single, community-scale 500kW wind turbine at Severndale Farm, Tidenham, Gloucestershire (“the proposed development”). It was proposed that the turbine would be erected and run by a community benefit society, and the application included a promise that an annual donation would be made to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years, to be achieved by way of a condition that the development be undertaken by such a society with the donation as part of the scheme.
  3. The Council granted full planning permission for the proposed development, with such a condition. In doing so, in favour of the proposed development, they expressly took into account the donation.  The Respondent (“Mr Wright”), a local resident, sought judicial review of the decision, on the basis that the promised donation was not a material planning consideration, and the Council had acted unlawfully in taking it into account.  In his judgment of 9 June 2016, Dove J agreed with that proposition, and quashed the grant of planning permission.  In these appeals, the Council and Resilient Severndale contend he was wrong to do so.
  4. Before us, Paul Cairnes QC and James Corbet Burcher of Counsel appeared for the Council, Martin Kingston QC and Jenny Wigley of Counsel for Resilient Severndale, and Neil Cameron QC and Zack Simons of Counsel for Mr Wright.

The Policy Background

  1. The Government wish to encourage renewable energy projects, and consider local communities have a part to play. In October 2014, the Department of Energy and Climate Change published a document entitled “Community Benefits from Onshore Wind Developments: Best Practice Guidance for England” (“the DECC Guidance”), in which the Ministerial Foreword said:

“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.”

  1. The document describes community benefits, in this context, in the following terms:

“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:

  1. 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.
  2. Socio-economic community benefits – job creation, skills training, apprenticeships, opportunities for educational visits and raising awareness of climate change.
  3. 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…”.

  1. Prior to the DECC Guidance, many onshore wind developers already provided voluntary contributions in various forms over the lifetime of the project. The document goes on to say:

“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).

  1. However, the DECC Guidance makes clear the relationship between the guidance it gives in the context of renewable energy policy, and the planning regime. Under the heading “Planning phase guidance; background to community benefits”, it states

“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.”

  1. In addition, paragraph 97 of the National Planning Policy Framework (“the NPPF”) states:

“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…”.
  1. Planning Practice Guidance: Renewable and low carbon energy (ID: 5-004-20140306) contains guidance in relation to the approach to be taken to community-led renewable energy, which builds on paragraph 97 of the NPPF. Under the heading “What is the role for community led renewable energy initiatives?”, it states:

“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

  1. The Resilience Centre Limited (“the Resilience Centre”) was established in 2009 by Andrew Clarke and his wife. The rationale for the company is set out in Mr Clarke’s statement dated 2 December 2015.  It focuses on social investment, i.e. “the provision and use of capital to generate social as well as financial returns”, with the aim “to help build resilience in society in the context of climate change, and natural resource limitations and with a view to improving local economies” (paragraph 4).
  2. The Resilience Centre has sought to pursue that aim, and in particular overcome the problems of up-front community energy project costs, which are at risk if the project does not ultimately proceed, by developing “the Resilient Energy Community Model”. This involves the Resilience Centre and the landowner obtaining planning permission, but with a commitment to open up the project to individual investors from the community once planning consent has been obtained.  Since the Cooperative and Community Benefits Act 2014 came into force on 1 August 2014, their legal structure of choice has been a community benefit society registered under that Act, which, as I understand it, has various tax advantages.  By section 2(2)(a)(ii) of that Act, it is a condition of registration that “it has been shown to the satisfaction of the [Financial Conduct Authority]… that the business of the society is being, or is intended to be, conducted for the benefit of the community”.
  3. The Resilient Energy Community Model is focused upon the community, the socio-economic benefits of the model being said to include the following.
    1. 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.
    2. 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.
  • It retains business rates within the district.
  1. It creates local jobs directly and indirectly.
  2. It provides a local educational resource.
  1. It also gives more direct financial benefit to the local community, in two ways. First, individuals in the community are invited to invest through a share issue in the relevant community benefit society, with the value of the contribution of the Resilience Centre and landowner being independently valued and reflected in their share in the project.  Expected returns for investors is in the region of 7% per annum.  Second, once the wind turbine is operational, a percentage of operating turnover is donated to the local community “to aid in building community resilience by helping the community to address current needs and future challenges” (paragraph 5 of Mr Clarke’s statement).  These funds are allocated to community causes by a panel of local people.
  2. This model has been used by the Resilience Centre, through single project limited companies and community benefit societies, for 500kW community wind power projects at Alvington (which is in the Council’s area) and St Briavels (which is just outside) which are operative, and two further projects at Kingswood, Stroud have obtained planning consent.

The Application

  1. Resilient Severndale, through the Resilience Centre as its agent, applied to the Council for planning permission for the proposed development on 29 January 2015. The application was accompanied by, amongst other things, a Planning Statement and an Environmental Report, and was supplemented by further letters from the Resilience Centre dated 10 and 15 July 2017.  The application focused on both the benefits of renewable wind energy and the new policy emphasis on the engagement of local people in the energy process.  The application documents therefore emphasised the community-focused nature of the development, paragraph 5.9.1 of the Environmental Report setting out the various benefits to the community which I have already outlined (see paragraph 12 above).
  2. One benefit was said to be:

“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).

  1. The Officer’s Report dated 7 July 2015 (“the First Officer’s Report”) advised the Council’s Planning Committee (“the Committee”) that the community benefit fund was not a material consideration that could be taken into account when considering the planning application, because (i) there were no clear controls and/or enforcement measures that could ensure the benefit was delivered, and in any event, (ii) the fund could be used to finance projects that were unconnected to low carbon energy generation.
  2. Resilient Severndale submitted further observations to the Council, which resulted in consideration of the application being deferred. Further submissions were then made, to the effect that the project would commit up to £1.1m in direct community benefits (i.e. 4% of turnover, together with £600,000 that it was estimated would be earned by the turbine over and above the community benefit society’s commitments which, under the terms of the society, would also be dedicated to the community), and relying upon a successful appeal to an inspector in relation to Alvington Wind Farm.  Further Officer’s Reports were then produced, the final report dated 11 August 2015 concluding that the community benefit fund was a material consideration in favour of the development.
  3. That day (11 August 2015), the Committee approved the application, the minutes expressly recording that, in doing so, “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 by [Resilient Severndale]”.
  4. On 30 September 2015, the planning application was granted subject to a number of conditions, including condition 28 (a pre-commencement condition) which provided as follows:

“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.

  1. The fund, once set up, will be allocated by a panel of local individuals established for that task; and the objects of the fund will include any community project. There was evidence before the judge that the St Briavels Wind Turbine Community Fund had been distributed for (amongst other things) the creation of a village handyman service, the maintenance of publicly accessible defibrillators in the village, the purchase of waterproof clothing to enable young members of the community to participate in scheduled outdoor activities in inclement weather, and to provide a meal at a local public house for the members of the St Briavels Lunch Club (a lunch club for older people) and club volunteers.

The Claim

  1. Mr Wright challenged the decision to grant planning permission by way of judicial review, on the basis that the community benefit fund donation was not a material consideration. He submitted that it did not serve a planning purpose, it was not related to land use, and it had no real connection to the proposed development.  In his judgment of 9 June 2016, Dove J accepted those submissions.
  2. Before this court, Mr Cairnes for the Council and Mr Kingston for Resilient Severndale submit that Dove J erred in law in his approach to the donation and his conclusion that it was not a material consideration in the planning decision-making process. They submit that, properly considered, the community benefit fund donation serves a planning purpose, and there is a real connection between it and the proposed development.  Furthermore, they submit, the judge’s conclusion that the donation is, as a matter of law, immaterial to the planning decision-making process is in contradiction to national policy and guidance which identifies renewable energy development as a positive material consideration.  Mr Kingston submits that the community fund donation is an inherent feature of the community involvement in the proposed development; and the result of the judgment, he submits, is to render that aspect of Government policy unlawful.

The Law

  1. The only issue that arises in these appeals is whether the proposed community benefit fund donation of a proportion of the turnover derived from the development was properly taken into account as a material consideration by the Council when it considered and approved the planning application for the proposed development.
  2. Section 70(2) of the Town and Country Planning Act 1990 (“the 1990 Act”) provides that, in dealing with an application for planning permission, a planning authority must have regard to all “material considerations”, including “any local finance consideration” defined in section 70(4) (added from 15 January 2012, by section 143(4) of the Localism Act 2011) as “(a) a grant or other financial assistance that has been, or will or could be, provided to a relevant authority by a Minister of the Crown, or (b) sums that a relevant authority has received, or will receive, in payment of Community Infrastructure Levy”.
  3. What amounts to a material consideration has been considered in a series of cases to which we were referred, including Newbury District Council v Secretary of State for the Environment [1981] AC 578 (“Newbury”), Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661, R v Plymouth City Council ex parte Plymouth and South Devon Cooperative Society Limited [1994] 67 P&CR 78, Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, R (Sainsbury’s Supermarkets Limited) v Wolverhampton City Council [2010] UKSC 20; [2011] 1 AC 437 and Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited [2017] UKSC 66 (“Aberdeen”). In his judgment at [20] and following, Dove J comprehensively and helpfully reviewed these cases (save for Aberdeen, which post-dated his judgment).  I can be relatively brief.  The relevant law is uncontroversial.  Indeed, all parties rely upon the same well-established propositions.
  4. So far as relevant to these appeals, the following propositions can be drawn from the cases.
    1. 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.
    2. 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 [29] per Lord Hodge JSC, giving the judgment of the court).
  • 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.
  1. 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.
  2. Off-site benefits are not necessarily immaterial. An off-site benefit may be material if it satisfies the Newbury

The Appellant’s Case

  1. Mr Cairnes and Mr Kingston accepted that the donation to a community benefit fund was an off-site benefit, and accepted that therefore, in order to be material, it must have a planning purpose and have a real connection with the proposed development. However, they submitted that Dove J erred in concluding that the proposed donation “is an untargeted contribution of off-site benefits which is not designed to address a planning purpose” (at [55] of his judgment); and that there was “no real connection between the development of the wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit” (at [56]).  He erred, it is said, both in restricting the scope of the concept of “serving a planning purpose” and thus finding that the community benefit fund donation did not satisfy that criterion; and in finding that it did not relate to the development.
  2. Their submissions were wide-ranging, but three broad strands are apparent.
  3. First, in respect of a planning purpose, Mr Cairnes submitted that the community benefit fund donation is capable of providing – and will in fact provide – a “positive socio-economic impact within a confirmed community-led structure, reasonably proximate to the development itself”. Those benefits, and the “community resilience” that will arise as a result, directly engage with the way in which the land is used and communities are built.  The community benefit fund is not only sourced from the proposed development as a percentage of turnover (so, as Mr Kingston vividly put it, “the community benefits from every turn of the turbine blades”), but through a community-focused and community-led structure in the form of the community benefit society.  The fund therefore serves a planning purpose.
  4. Mr Kingston accepted that the community involvement through the community benefit fund does not relate to land use “in the strict sense”; but, he submitted, it fulfils a planning purpose in improving sustainability of communities, and is not less related to land use than (e.g.) the planning policy in relation to affordable housing, i.e. the policy encouragement to limit the occupancy of some housing to those with limited financial needs, which is recognised as a material consideration in planning applications.
  5. Second, Mr Kingston submitted that the community benefit fund donation falls within the scope of planning purpose, because it has a positive effect of a “constraint on the operation of the development” for the benefit of the community: it is the beneficial financial result of constraining the development to operate only for the benefit of the community. In this regard, the fact that the developer would be a community benefit society, rather than a strictly commercial enterprise, is vital.  The community benefit fund is not a gift or a bribe to obtain planning permission: it is an inextricable part of the scheme, and an inherent consequence of the development being community-led.  It would be inappropriate and wrong to disaggregate the community benefit fund, as a financial consequence of the scheme, from the other aspects of the scheme.  He submitted that the DECC Guidance, properly construed, draws an important distinction between community benefit funds that are sourced from a commercial venture, and those sourced from a community project.  Every payment from the fund would evidence continuing community involvement in the operation of the scheme, from which the fund would be derived.  There can be confidence that the relevant fund will be only used for local community purposes because, not only will it be distributed by a committee of local people, but the statutory provisions under which the community benefit society will be set up requires it to be conducted for the benefit of the community.  The Financial Conduct Authority has to be satisfied that that requirement is met.  Mr Cairnes went so far as to refer to “the unique nature of the financial contribution in the instant case”.
  6. Third, both Mr Cairnes and Mr Kingston submitted that the judge was wrong to consider that the classes of material considerations are closed; and, in particular, he failed to take into account the recent evolution in policy, which should be mirrored by a change in approach to material considerations. What amounts to a material consideration for planning purposes is flexible and dynamic, and responsive to evolving planning policy.  The DECC Guidance, NPPF and the PPG positively support both renewable energy, and specifically community involvement and leadership in local renewable energy projects.  There is thus strong policy support for treating developments such as this, on a planning application, more benevolently than a commercially-operated wind turbine.  In any event, the conclusion of Dove J requires a planning authority to ignore these relevant policy factors, and thus creates a “policy contradiction”.  Mr Kingston submitted that the judgment effectively renders unlawful the Government policy encouraging positive consideration of community involvement in renewable energy; and whether it is unlawful or not is, he submits, the central issue in this appeal.

Discussion

  1. Skilfully as those submissions were made, I am unpersuaded by them.
  2. Both Mr Cairnes and Mr Kingston – in my view, rightly – accepted that, on a planning application, it would be unlawful for a planning authority to take into consideration a donation to a community benefit fund by a commercial wind farm developer, because such a donation would not be a material consideration. For similar reasons, they accepted that an authority could not require such a donation as a planning obligation, whoever the developer might be.  However, they each submitted that the circumstances of this case, notably the voluntary donation derived from a community-led project and made to benefit the community, were materially different; but that submission faced the difficulty that, as I have indicated (see paragraph 28(ii) and (iv) above), neither the source of the funds nor the fact that a matter is regarded as beneficial to the public make a matter a material consideration for planning purposes (a matter to which I return below: see paragraph 51 and following).
  3. That led to Mr Kingston, in particular, submitting that the community benefits of this development have to be looked at as a whole, because the donation for the community benefit fund cannot be disaggregated from the other community socio-economic benefits that will derive from the development, some of which (it is common ground) are material in a planning context. However, it was not suggested that the 4% of turnover donation was “necessary” for the purposes of the grant of planning permission; nor could any explanation be given as to why the figure of 4% (rather than 3% or 5% or some other figure) was offered.  Nor was that donation “inherent” in the project, any more than an offer of a similar donation by a commercial wind farm developer would be “inherent” in his development.  In any event, an immaterial consideration cannot be made material by simply aggregating it with other considerations, some of which are or may be material.
  4. Nor was I impressed by Mr Kingston’s submission that the DECC Guidance distinguished between donations to the community made by a commercial developer and those made by a community developer, for two primary reasons.
  5. First, I am unconvinced that the nature of the proposed development scheme here is essentially different from what Mr Kingston described as a “commercial” scheme. I accept that there are differences in emphasis between the type of project Mr Kingston described: a commercial scheme may be more concerned with maximising profit, whereas in the proposed development the community would have more of an interest in the scheme at the expense of some profit.  Just as a commercial wind farm may not be entirely concerned with profit – as I have described, developers of such a wind farm are expected to make a voluntary donation into a community benefit fund – the proposed scheme here is not entirely altruistic.  The Resilience Centre is committed to local renewable energy; but, as Mr Clarke’s statement makes clear – and entirely understandably – it focuses upon the use of capital to generate financial, as well as social, returns (see paragraph 11 above).  It intends making a profit on this project, as a return for the at risk investment it has made.  Similarly, the landowner intends making a profit from his investment, his stake in the project being based on the value of his land with the benefit of planning permission.  If the project is opened up to individual investors, although they will be local, not all local people will be able to afford to invest and the number of such investors are likely to be relatively few – we were told that about one hundred, out of a community of about 4,500, have expressed an interest.  Those who invest will expect an estimated 7% per annum return.  Therefore, in each scheme, although I accept the emphasis and the distribution of income might be different, there are usually elements of both profit and voluntary contributions to the community.
  6. Second, in relying upon the DECC Guidance, Mr Kingston faced the difficulty of the document itself stating 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” (see paragraph 8 above). He sought to address this difficulty by reference to the introduction to the DECC Guidance, which states that “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.”  Mr Kingston submitted that the DECC Guidance draws a distinction between a community venture and a commercial venture with community benefits.  He submitted that, on a proper construction of the Guidance, community benefit funds and benefits in kind as the terms are used in the DECC Guidance introduction are restricted to such benefits as might be provided by otherwise commercial wind farm developers; whilst community investment, socio-economic community benefits and material benefits, as those terms are used, are restricted to community-led and -focused projects such as this.  On this analysis, the community benefit fund in this proposed development is an essential part of a bundle of socio-economic benefits which, it is submitted, the Guidance acknowledges are material planning considerations.
  7. There are in my view a number of difficulties with that analysis.
  8. First, a basic defect in the analysis is that, in my view, on a true reading the DECC Guidance simply does not draw the distinction between commercial and community wind developments which Mr Kingston seeks to rely upon. The community benefit fund in this case – the 4% of turnover year-on-year – falls firmly within the definition of “community benefit fund” given in the DECC Guidance, i.e. “voluntary payments from an onshore wind developer to the community, usually provided via an annual cash sum”.  It does not fall within the definition of “socio-economic community benefits”, i.e. “job creation, skills training, apprenticeships, opportunities for educational visits and arranging awareness if climate change”.  Nor does it fall within “community investment”, because it is clear that this category involves shared ownership, i.e. “where a community has a financial stake, or investment in the scheme”, which is not the case in a community benefit fund in which the community share in a benefit not ownership.  There is nothing in the Guidance to suggest that a donation which falls within “community benefit funds” is restricted to a donation from so-called “commercial” developers.
  9. That the community benefit fund in this case is distinct from the other socio-economic benefits (some of which are material planning considerations) was recognised by Resilient Severndale in its Summary Grounds of Opposition to Mr Wright’s judicial review, where it was said:

“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.

  1. 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.

  1. 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.”
  2. Therefore, from its letters of 15 July and 7 August 2015, and from its pleading in the judicial review, Resilient Severndale’s offer was clear, i.e. a community benefit fund donation distinct from the other benefits of the development. In my view, that correctly recognised the reality that the donation to the community benefit fund was outside the “socio-economic benefits” of the project and was, as the DECC Guidance confirmed, outside the scope of material planning considerations.  Given the nature of the offer, it is unsurprising that the First Officer’s Report advised the Committee that the community benefit fund was not a material consideration (see paragraph 18 above).
  3. I add for the sake of completeness, that neither does the fund fall within section 70(4) of the 1990 Act (see paragraph 26 above). That sub-section was added by the Localism Act 2011, as part of a suite of planning provisions which included the NPPF.  It set out “local finance considerations” which are to be treated as material considerations for planning purposes.  Of course, notwithstanding a failure of such consideration to comply with the Newbury criteria, Parliament through statute, unlike the executive through policy, could do that.  It is notable, however, that Parliament has not amended those provisions to include a community benefit fund donation, by whomever made, as such a material consideration.
  4. Second, at a higher level, although the DECC Guidance is not planning policy, even planning policy cannot convert something immaterial into a material consideration for planning purposes. Mr Kingston submitted that changing policy in relation to affordable housing resulted in a change of approach of the courts to accept affordable housing needs as a material consideration in, notably, Mitchell v Secretary of State for the Environment (1994) 69 P&CR 60.  However, that was a very different case from this.  As Saville LJ (with whom Balcombe LJ and Sir Roger Parker agreed) indicated (at page 62), it was uncontroversial that the need for housing in a particular area was a material consideration for planning purposes: Mitchell merely confirmed that there was no difference in principle between the need for housing generally, and the need for particular types of housing.  Contrary to Mr Kingston’s submission, I do not consider that Balcombe LJ’s short judgment suggests otherwise.  The issue was raised in the context of a challenge to an affordable housing policy, and whether that policy offended the Newbury  Balcombe LJ, like Saville LJ (with whom he agreed, and said that his observations did no more than elaborate Saville LJ’s leading judgment), merely confirmed that the need for affordable housing was a matter properly relating to the character and/or use of the land.  That is one of the Newbury criteria.  In my view, Mitchell is firmly based on conventional principles concerning the character and use of land, and did not affect the approach to material considerations.
  5. Mr Kingston frankly accepted that his reliance on a review of the affordable housing cases “maybe goes too far” (paragraph 19 of his skeleton argument). In my view, the affordable housing cases do not assist Mr Kingston’s cause: and, certainly, they do not support the proposition that, in considering whether a matter which does not satisfy the Newbury criteria can be treated as a material consideration, the court can consider how such a matter is treated by the executive government in its policy documents.
  6. In any event, whilst it is true that both paragraph 97 of the NPPF and the PPG encourage the use of renewable energy, and particularly community-led initiatives in that regard, neither encourage unrestricted gifts of money to the community; and, as Dove J said at [54] of his judgment, neither suggests that, where a proposed development is community-led, it is unnecessary to examine contributions associated with it to assess whether they satisfy the legal requirements of being a material consideration in the planning decision, i.e. the Newbury
  7. Both Mr Cairnes and Mr Kingston referred to the “policy contradiction” inherent in Dove J’s judgment, which (it is submitted) requires a planning decision-maker to ignore relevant Government policy encouraging renewable energy and, particularly, renewable energy projects which are community-focused and community-led. However, in my view, there is no such contradiction or problem.  The DECC Guidance is not part of the planning regime; nor is the Sustainable Communities Act 2007 or the Infrastructure Act 2015, which Mr Kingston also relied upon in support of the contention that the community involvement in projects is generally encouraged.  In any event, the planning regime is used to considering, in the same decision-making process, various material policies that may pull in different directions.  In respect of any proposed development, the adverse impact on one policy may have to be balanced against the policy benefits elsewhere in the regime.  There is no doubt that a policy that encourages community involvement in wind farm development may be a material consideration; but it is only material if and insofar as it complies with the Newbury  Where it does, then it is for the planning decision-maker to give it the weight that it considers appropriate.
  8. Turning to those criteria, where a financial contribution that is not a material consideration is put forward as part of an application for proposed development, it is sometimes said that that is an attempt to “buy” planning permission. In my view, that terminology (or even more pejorative terms such as “bribe”) is generally unhelpful.  In respect of materiality, the proper focus is upon the Newbury  No matter how well-intentioned the proposed donor might be (and I accept that, here, Resilient Severndale is well-intentioned), and no matter how publicly desirable such a donation might be (and I accept that, here, the proposed community benefit fund would benefit the community), such a donation will not be material for planning purposes unless it satisfies those criteria.
  9. As I have indicated (paragraph 28(ii) above), a planning purpose is one which relates to the character or use of the land. It is proposed that the donation by the developer here will be put into a community benefit fund, administered by local people for the benefit of the community, but without any other restriction, e.g. a restriction to use it for a planning purpose.  I have set out some of the beneficiaries of the similar fund set up in respect of the St Briavels Wind Farm (see paragraph 22 above).  I accept that all these are worthy community causes, but the provision of waterproofs for young people, and lunch for older people, do not seem to address any obvious planning purpose.  As Dove J found (at [48] of his judgment), “beyond being of some benefit to the local community, as recognised or defined by the local people administering the fund, there is no limitation on how the money might be used”.
  10. Nevertheless, Mr Cairnes and Mr Kingston submitted that “materiality” is a broad concept, the categories of which are never closed. This fund would benefit the community as identified by those responsible for its distribution – and, in that limited sense, contribute to the robustness or “sustainability” of that community.
  11. However, although the concept of materiality may be broad, it is not without limit; and the “categories” of materiality as set out in Dove J’s judgment, to which Mr Cairnes and Mr Kingston referred (e.g. matters which “ameliorate or address some impact on social or physical infrastructure” or “address some adverse land use consequences of the grant of permission”, or an “off-site contribution related to a planning impact”) are, in reality, merely different applications of the Newbury
  12. Mr Kingston, relying upon R (Welcome Break Group Limited and Others) v Stroud District Council [2012] EWHC 140 (Admin) (“Welcome Break”) and Richard Verdin trading as the Darnhall Estate v Secretary of State for Communities and Local Government [2017] EWHC 2079 (Admin) (“Verdin”), submitted that the community benefit fund donation is for a planning purpose because it is “the positive effect of a constraint on the operation of the development”. It is “simply the beneficial financial result of constraining the development to operate only for the benefit of the community” (paragraph 10 of his skeleton argument).  It is therefore, he submits, similar to Welcome Break, where the development was constrained to operate in a way that benefited local employment and the sale of locally sourced food; and to Verdin, where conditions constrained the construction of the development by requiring the use of small local building firms and using local procurement initiatives.
  13. However, in my view, Welcome Break and Verdin are of no assistance to Mr Kingston, each being very different from this case on their facts. The planning obligation relating to local food resourcing and local employment in Welcome Break was clearly, as found by Bean J (as he then was), directly related to the use of the land and the development; as was the condition relating to the use of local building firms in Verdin.  In this case, as I have described, it is envisaged that the donation will or may fund community causes which have no possible planning purpose or relation to the proposed development.
  14. Nor is R (Copeland) v London Borough of Tower Hamlets [2010] EWHC 1845 (Admin) or R (Working Title Films Limited) v Westminster City Council [2016] EWHC 1855 (Admin), upon which Mr Kingston also relied, of any more help to his cause. Mr Kingston relied upon these cases to show that social factors can be material in the planning context: the former concerned the relationship between a fast-food take-away and a school, and the latter the provision of a community hall as part of a large development in which planning permission was granted on the basis that “the level of social and community uses and public parking significantly enhances the development”.  However, as I have described, community and social benefits may, in their proper place, be in favour of the grant of planning permission.  But neither case suggests that the Newbury criteria do not apply to such benefits.
  15. Finally, Mr Kingston submitted that the fact that the operation of a community wind turbine, for the financial benefit of the community through a community benefit fund, is in itself sufficient for that benefit to be a material consideration, because, in addition to his other arguments (which I have dealt with above), it fulfils the clear planning purpose of improving the sustainability of communities, and/or, for the community generally, it ameliorates the adverse (visual and aural) impact of the wind turbine on the community. However, this is merely a recasting of the argument that any matter which benefits the community is a material consideration for planning purposes; and it would apply equally to a community benefit fund donation offered by a “commercial” wind farm developer as much as a “community” developer.  I have already dealt with the substance of that argument.
  16. In my view, for the reasons I have given, Dove J, who referred to and applied the relevant authorities, was right to proceed on the basis that the nature of the community benefit fund donation, and the vehicle it was proposed would provide it, were not such as to preclude examination of the contributions associated with it to see whether they satisfied the legal requirements of being a material consideration in the planning decision. He was 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” (see [55] of his judgment).  He was also entitled to conclude that there is “no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit” (see [56]).  Indeed, he was in my view, undoubtedly right to draw such conclusions: and to conclude that, consequently, the Council was not entitled to take into account as a material consideration the offer of the community benefit fund donation made as part of Resilient Severndale’s proposal, as it did.

Conclusion

  1. Although, out of deference to the arguments put before this court, I have set out my own reasons for upholding the judge below, in my view Dove J’s conclusions were correct, essentially for the reasons he gave.
  2. I would dismiss the appeals.

Lord Justice Davis :

  1. In my view, Mr Cameron QC put his finger on the real point when he said that the question here is not whether the proffered benefits in question were desirable: it is whether (in planning terms) they were material.
  2. The Appellants were not, for example, really able to explain why a 4% figure by way of community donation was chosen to be put forward. Presumably it was, at least in part, calculated that such a figure would be attractive to the planning authority.  But the implication is that a corresponding application offering, say, 5% would have been still more likely to prevail; whereas a planning application making no such offer at all possibly might have failed.  These points of themselves seem to me to cast grave doubt on whether such a proposal was in truth integral to the planning application, as the Appellants sought to say, and on whether the proposal was material in a planning sense.
  3. Nor can I see any principled basis for departing from a proper application of the Newbury approach in a case such as the present. The fact that desirable objects (renewable and sustainable energy) and worthy causes (benefits to the community) are involved cannot of themselves mandate a departure from usual principles with regard to material considerations.  In any event, in the present case this ultimately in substance was to be a commercial development.
  4. I do not propose to say more. I agree that the appeals should be dismissed for the comprehensive reasons given by Hickinbottom LJ in his judgment.  I also agree with the judgment of Dove J in the court below.

Lord Justice McFarlane :

  1. I also agree.

.

.

Regards,
Greg_L-W.

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Wind Turbine Blades: A Toxic Legacy For Centuries to Come – So Much for Saving the Planet …

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Wind Turbine Blades: A Toxic Legacy For Centuries to Come –
So Much for Saving the Planet ….
.
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Posted by:
Greg Lance – Watkins
Greg_L-W

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Hi,

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Wind Turbine Blades: A Toxic Legacy For Centuries to Come – So Much for Saving the Planet

***

Nightmare Of Wind Turbine Blade Disposal: 2 New Papers Expose The Environmental Nightmare Of Wind Turbine Blade Disposal

No Tricks Zone
Kenneth Richard
22 June 2017

“If the industry cannot come up with more sustainable manufacturing and disposal processes, public acceptance of wind energy would decline if the public becomes aware of these issues” – Ramirez-Tejeda et al., 2017

Despite an explosion in installed wind capacity since 1990, wind power had achieved just 0.39% of the world’s total energy consumption as of 2013.

Germany has assumed a leading role in promoting the consumption of renewable energy.  And yet even in Germany the share of energy consumption from wind power reached only 2.1% in 2016.

Despite its extremely limited infiltration as a world energy source, it is assumed that a rapid expansion of wind power will ultimately be environmentally advantageous both due to its reputation as a “clean” energy and because of the potential to contribute to reduced CO2 emissions.

Recently, however, the austere environmental impacts and health risks associated with expanding wind energy have received more attention.

For example, scientists have asserted that wind turbines are now the leading cause of multiple mortality events in bats, with 3 to 5 million bats killed by wind turbines every year.   Migratory bats in North America may face the risk of extinction in the next few decades due to wind turbine-related fatalities.

Frick et al., 2017

“Large numbers of migratory bats are killed every year at wind energy facilities. … Using expert elicitation and population projection models, we show that mortality from wind turbines may drastically reduce population size and increase the risk of extinction. For example, the hoary bat population could decline by as much as 90% in the next 50 years if the initial population size is near 2.5 million bats and annual population growth rate is similar to rates estimated for other bat species (λ = 1.01). Our results suggest that wind energy development may pose a substantial threat to migratory bats in North America.”

Wind Turbine Blades Last 20 Years…And Then They Are Tossed Into Landfills

Besides reducing wildlife populations, perhaps one of the most underrated negative side effects of building wind turbines is that they don’t last very long (less than 20 years) before they need to be replaced. And their blades aren’t recyclable. Consequently, 43 million tonnes (47 million tons) of blade waste will be added to the world’s landfills within the next few decades.

Liu and Barlow, 2017

“The blades, one of the most important components in the wind turbines, made with composite, are currently regarded as unrecyclable. With the first wave of early commercial wind turbine installations now approaching their end of life, the problem of blade disposal is just beginning to emerge as a significant factor for the future. … The research indicates that there will be 43 million tonnes of blade waste worldwide by 2050 with China possessing 40% of the waste, Europe 25%, the United States 16% and the rest of the world 19%.”

“Although wind energy is often claimed to provide clean renewable energy without any emissions during operation (U.S. Department of Energy, 2015), a detailed ecological study may indicate otherwise even for this stage. The manufacture stage is energy-intensive and is associated with a range of chemical usage (Song et al., 2009). Disposal at end-of-life must also be considered (Ortegon et al., 2012; Pickering, 2013; Job, 2014).A typical wind turbine (WT) has a foundation, a tower, a nacelle and three blades. The foundation is made from concrete; the tower is made from steel or concrete; the nacelle is made mainly from steel and copper; the blades are made from composite materials (Vestas, 2006; Tremeac and Meunier, 2009; Guezuraga et al., 2012). Considering these materials only, concrete and composites are the most environmentally problematic at end-of-life, since there are currently no established industrial recycling routes for them (Pimenta and Pinho, 2011; Job, 2013).”

In a new paper entitled  “Unsustainable Wind Turbine Blade Disposal Practices in the United States”, Ramirez-Tejeda et al. (2017) further detail the imminent and unresolved nightmare of wind turbine blade disposal. The environmental consequences and health risks are so adverse that the authors warn that if the public learns of this rapidly burgeoning problem, they may be less inclined to favor wind power expansion. Advocates of wind power are said to be “largely ignoring the issue”. It’s an “issue” that will not be going away any time soon.

In light of its minuscule share of worldwide consumption (despite explosive expansion in recent decades), perhaps it is time to at least reconsider both the benefits and the costs of wind energy expansion.

‘Adverse Environmental Consequences’ For A Rapidly Expanding Wind Power Grid

Ramirez-Tejeda et al. (2017)

“Globally, more than seventy thousand wind turbine blades were deployed in 2012 and there were 433 gigawatts (GW) of wind installed capacity worldwide at the end of 2015. Moreover, the United States’ installed wind power capacity will need to increase from 74 GW to 300 GW3 to achieve its 20% wind production goal by 2030. To meet the increasing demand, not only are more blades being manufactured, but also blades of up to 100 meters long are being designed and produced.”

“The wind turbine blades are designed to have a lifespan of about twenty years, after which they would have to be dismantled due to physical degradation or damage beyond repair. Furthermore, constant development of more efficient blades with higher power generation capacity is resulting in blade replacement well before the twenty-year life span.”

“Estimations have suggested that between 330,000 tons/year by 2028 and 418,000 tons/year by 2040 of composite material from blades will need to be disposed worldwide. That would be equivalent to the amount of plastics waste generated by four million people in the United States in 2013. This anticipated increase in blade manufacturing and disposal will likely lead to adverse environmental consequences, as well as potential occupational exposures, especially because available technologies and key economic constraints result in undesirable disposal methods as the only feasible options.”

Problems With Landfills

“Despite its negative consequences, landfilling has so far been the most commonly utilized wind turbine blade disposal method. … Landfilling is especially problematic because its high resistance to heat, sunlight, and moisture means that it will take hundreds of years to degrade in a landfill environment. The wood and other organic material present in the blades would also end up in landfills, potentially releasing methane, a potent greenhouse gas, and other volatile organic compounds to the environment.”

“The estimated cost to put blade material in landfills, not including pretreatment and transportation costs, is approximately US $60 per ton. [A typical blade may weigh 30-40 tons]. In the United Kingdom, where landfilling organics is not yet prohibited, the active waste disposal cost (which includes plastics) is approximately US $130 per ton.”

Problems With Incineration

“Incineration of blades is another disposal method with potential for energy and/or material recovery. … Combustion of GFRP is especially problematic because it can produce toxic gases, smoke, and soot that can harm the environment and humans. Carbon monoxide and formaldehyde have been reported as residue from thermal degradation of epoxy resin. Another residue is carbon dioxide, which poses concerns regarding greenhouse gas emissions. In addition, about 60% of the scrap remains as pollutant ash after the incineration process, some of which is sent to landfills, potentially contaminating the sites. Possible emission of hazardous flue gasses is also among the issues with incinerating wind turbine blades.”

“One key issue is that all these thermal processing techniques for wind turbine blades would also require fragmentation of the material into smaller pieces through mechanical processing before being fed into the reactors, increasing energy consumption and carbon dioxide emissions.”

Problems With Mechanical Processing

“Mechanical processing is a relatively simpler disposal method that consists of cutting, shredding, and grinding the material to separate the fibers from resins, so it can be repurposed. This process is energy intensive and produces small fiber particles with poor mechanical properties that can only be used as filler reinforcement material in the cement or asphalt industries. … The dust emitted in the grinding process of FRP creates occupational health and safety risks for workers. Inhalation, as well as skin and eye contact can produce moderate irritation to mucous membranes, skin, eyes, and coughing. Occupational exposure and prolonged inhalation of such particles have been found to produce alterations of the cellular and enzymatic components of the deep lung in humans, identified as acute alveolitis.”

Problems With Chemical Degradation

“The last method is chemical degradation, which consists of first mechanically reducing the size of the blades, then degrading them using a chemical solution. … Although no industrial-level chemical recycling of thermoset polymers has been done yet, some hazardous chemicals such as nitric acids and paraformaldehyde have been used in testing and development processes. Occupational exposure to these chemicals can produce harmful respiratory diseases including potential nasal cancer, and dermal health effects.”

Advocates Of Wind Power ‘Have Largely Ignored The Issue’

“Few individuals and organizations recognize the problems inherently related to blade recyclability. This situation creates an obstacle for promoting policy interventions to solve these problems. As a result, manufacturers, wind farm operators, and advocates have largely ignored the issue, focusing efforts on promoting wind energy and addressing other issues such as negative impacts on wildlife and noise generation.”

“If the industry cannot come up with more sustainable manufacturing and disposal processes, public acceptance of wind energy would decline if the public becomes aware of these issues, inhibiting its growth as one of the main sources of electricity generation in the United States.”

NoTricksZone

NoTricksZone flatters these things when it puts the lifespan of wind turbine blades at 20 years. The whole unit has an economic life of little more than a decade (see our post here).

Wind turbine blade failure is one of the more common features of these wondrously ‘reliable’ things: Wind Turbine Terror: Spanish Home Hit by Flying Blade – Just 1 of 3,800 Blade ‘Fails’ Every Year

And it’s not uncommon for turbine blades to fail within months of coming into operation.

At AGL’s Hallett 1 (Brown Hill) wind farm, south of Jamestown, South Australia the blades on each and every one of its 45 Suzlon S88s failed within their first year of operation, requiring their wholesale replacement.

The 2.1 MW, Indian built turbines commenced operation in April 2008. Not long into their operation, stress fractures began appearing in the 44m long blades. Suzlon (aka Senvion aka RePower) claimed that there was a “design fault” and was forced by AGL to replace the blades on all 45 turbines, under warranty.

The photos below show the stubs from those blades outside Suzlon’s Jamestown workshop. The main bodies of the blades were ground up and mixed with concrete used in the bases of other turbines erected later (the plastics in the blade are highly toxic, and contain Bisphenol A, which is so dangerous to health that the European Union and Canada have banned it):

stubs-1

stubs3

Turbine blade failures, including events where 10 tonne blades are thrown to the 4 winds (aka ‘component liberation’) are so common that we are able to finish this post with a graphic documentary, the captions are linked to the stories behind the pictures:

turbine-separation

Sigel Township, Michigan, February 2016.

turbine blade germany

Ostsee, Germany, December 2015.

BladeFailure_Spain

Pontecesco, Spain, January 2016.

blade fail

Fenner, New York, February 2016.

turbinedutchbladeaccident

Leystad, A6 Highway, Netherlands, May 2009.

turbine blade donegal

Donegal, Ireland, December 2013.

turbine001 kerry

Kerry, Ireland, January 2015.

bladethrow-shredding-ocotillo

Ocotillo, California, May 2013.

blade-whitelee_accident

Whitelee (near Glasgow), Scotland, March 2010.

And, we’ll finish with the video that strikes fear into the hearts of those unfortunate enough to live within 2 kms of these things:

Terrifying, dangerous and pointless!

And, it must be comforting to know that the liberated components depicted above (along with 3,800 odd blade fails every year) were quietly dumped in landfills to deliver their toxic cocktail into aquifers and water supplies for centuries to come.

Welcome to your wind powered future!

To view the original article CLICK HERE

.

Regards,
Greg_L-W.

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The Full Text Of The GWPF Report On The £300Bn Cost Of The CLIMATE CHANGE ACT …

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The Full Text Of The GWPF Report On The £300Bn Cost Of The CLIMATE CHANGE ACT ….
~~~~~~~~~~#########~~~~~~~~~~

Posted by:
Greg Lance – Watkins
Greg_L-W

eMail: Greg_L-W@BTconnect.com

~~~~~~~~~~#########~~~~~~~~~~

Hi,

I believe that you will find this 56 page pamphlet regarding the cost of the Climate Change Act both informative and deeply shocking.
It is widely believed that the Climate Change Act is likely to be the most expensive Act of Parliament ever passed. When you consider it is enacted based upon unsound scientific theory that is both heavily debated and widely discreditted, such as the largely dishonest claims for the efficacy of Wind Turbines and their value to the generation of power, without considering the huge environmental damage done in their manufacture and installation, plus of course the damage to both the wildlife, soil and scenery. Damage which is not only cumulative but long lasting!

The many tons of concrete and the huge amount of steel used in their construction, together with the transportation, outweighs in damage and pollution any likelihood of gain they may pretend to, both in the short term and the long term!

gwpf-peter-lilley-300bn-pamphlet-dec-2016

The full text can be found here:

gwpf-300-bn-cost-dec-2016

Regards,
Greg_L-W.

~~~~~~~~~~#########~~~~~~~~~~
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PS-56: PRESS RELEASE, subsequent to Planning Committee meeting of 11-Aug-2015.

PLEASE:
Help To Arm People
With The Truth & Facts
To Make Their Case & Defend Themselves

.

PS – 56:

11-Aug-2015
(PS-56: PRESS RELEASE, subsequent to Planning Committee meeting of 11-Aug-2915.)

On behalf of:
The Community Against Severndale Wind Turbine

PRESS RELEASE
Tuesday 11-Aug-2015

We are extremely disapointed that the Forest of Dean District Council has ignored both the wishes of the local community in Tidenham and new Conservative Government Policy Guidance and has granted planning permission for the erection of a 300ft+ high wind turbine at Severndale Farm,. Given that the applicant. Mrs. Maria Edwards, is the newly elected Conservative member of the Forest of Dean District Council Planning Committee for Tidenham Ward, concerned local residents will be taking legal advice on the handling of this application by the District Council.

This was issued together with a copy of the letter in the PS-54 above.

 

We believe the information gathered on this site can act to bring the truth, regarding the dishonesty of the claimed benefits of Wind Turbines (WT) to the front of people’s minds as they are regularly taxed, in a hidden tax, on their energy bills to fund these politically correct and fundamentally all but useless monstrosities.

We have gathered a great deal of information in our efforts to prevent the industrialisation of Stroat and the banks of the Severn Estuary and across the wider area including the Forest of Dean (FoD) as administered by The Forest of Dean District Council (FoDDC), areas of outstanding natural beauty (AoONB), sites of special scientific interest (SSI) & wildlife habitats.

Please help to spread the truth about the Wind Turbine scam and the fundamental flaws and lies of the ‘Warmists’ & self proclaimed ‘Greens’, which are presented as ‘fact’, regarding the anthropogenic influence of mankind on Global Warming and Climate Chance.

Arm yourself with facts to defeat the biggest con of the late 20th and early 21st Century, and do please spread the truth and the URL of this site as widely as you can.

Posted by: Greg Lance – Watkins (site owner)

If you would like more information about Stroat see: http://Stroat-Gloucestershire.com/

If you would like more information about Greg_L-W see: http://GregLanceWatkins.com/

E&OE

PLEASE NOTE: We do not accept responsibility for material on links and other sources

IF you note ANY errors of fact in this or any other web site or blog I own or manage please bring it to my attention for correction @ Greg_L-W@BTconnect.com – Thank you.

Media Coverage of The Judgment final of Mr. Justice DOVE – HIGH COURT – re: Wind Turbine, Hanley Hill, Stroat.

Media Coverage of The Judgment final of Mr. Justice DOVE – HIGH COURT – re: Wind Turbine, Hanley Hill, Stroat.

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Posted by:
Greg Lance – Watkins
Greg_L-W

eMail: Greg_L-W@BTconnect.com

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13-Jun-2016
Media Coverage of The Judgment final of Mr. Justice DOVE
– HIGH COURT –
re: Wind Turbine, Hanley Hill, Stroat.

 

Hi,

ROYAL COURTS of JUSTICE 01

Judgment final

CLICK ON: Judgment final to read the full Judgement of:
Mr. Justice DOVE
In .pdf format.

Mrs. Clarke of Resiliance might find a detailed reading of the High Court Judgement might serve her well, it is clear that thinly veiled bribes are not to be considered in planning applications, further it is not for Mrs. Clark or her commercial interest in profit to consider an appeal as it was FoDDC whom the Judge found against and thus although an interested party Resiliance, Mr. nor Mrs. Clark nor even the applicant Cllr Mrs. Maria Edwards of the Planning Committee of FoDDC are in a position to appeal as the judgement was not against them.

In my opinion Mrs. Clark would also be well advised to consider her position in view of the clear misrepresentation of the situation and her support for the unlawfull decision of the FoDDC overturned by The High Court – as it could be interpreted as contempt of Court. It has been made unequivocally clear that however well disguised bribes should never be allowed to be considered as a means to buy planning permission and the interests of the affected community are highlighted under the law not the profiteering of the applicants.

As has been shown the affected community will take strenuous efforts and take vigerous action to uphold planning law and their rights in the interests of the community at large – particularly minded of the unequivocal statement in the Sunday Telegraph 05-Jun-2016 that there is no case for wind turbines on land in England as there is insufficient wind to sustain them (hence the need owners have for huge subsidies and back up deisel generators!).

Our countryside, environment, wildlife and general ammenities are not readily for sale to for profit despoilers willing to pollute our environment in the harmfull production and installation of wind turbines or similar profiteering ‘schemes’ and ‘scams’.

Let us hope that the prediction of the ‘self styled so called greens’ is correct and this decision does indeed make it harder to erect the grossly polluting edifices that are so clearly proven to be damaging to the environment, the wildlife and the scenery as they tower dominantly over the landscape flickering and distracting 3 times the height of the highest tree in the forest as the backdrop or foreground to any efforts to enjoy the peace, tranquility and views of such a beautifull are. IF they effectively produced electric current on a viable and reliable basis that might in the eyes of some of the more gullible act as some mittigation – but they do not!

Major blow to wind energy after judge told Forest councillors planning consent not for sale

By CitizenNews  |  Posted: June 13, 2016

A judge has warned councillors that planning permission is not for sale after residents raised £35,000 to fight a community wind turbine in the courts

In a decision that could have national implications for crowd-funded alternative energy projects, Mr Justice Ian Dove said the Forest of Dean District council was wrong to grant planning permission for the 87 metre turbine at Severndale Farm, Tidenham.

And he has said FODDC must pay the protester’s costs of quashing the decision, which could amount to around £35,000.

The turbine divided the village with some saying the cash benefits of around £500,000 from a share of profits would come in useful and others saying it would ruin the landscape and be dangerous because it is next to the busy A48.

 

When a majority of councillors on the committee overturned the advice of officers who said the Woolaston-based Resilience Centre should not be allowed to put a turbine on the land owned by local farmer Lyndon Edwards, those against the plans raised enough money for a judicial review.

Their barrister told the High Court that it was irrelevant that some of the profits would be ploughed back into the community.

And in upholding their challenge, the judge said it was a fundamental rule that planning permissions are never “for sale” and that it was unlawful to focus too much on community benefits which were dependent on winning planning approval.

Resident Peter Wright, who led the fight against the turbine, said he was delighted.”This is an historic victory for the true local community in Stroat and Tidenham,” he said.

“The local community have been united in their determination to block this third single wind turbine being put up in the Severn Estuary by the same developers and we are pleased that the High Court has fully recognised the merits of our Claim and quashed the council’s decision as being unlawful.

“We shall continue to fight to protect the local landscape and our local community in the event of any further planning applications coming forward.”

Sue Clarke director of the Resilience Centre, which has been behind two turbines in the Forest and two in Stroud, is considering appealing against the judge’s decision. She said: “This ruling, which quashes the planning permission for Severndale, is disappointing on many levels and is yet another blow for the UK community energy sector.

“Unless permission is given to appeal and the decision is subsequently overturned, the project cannot now proceed and residents of Tidenham and the broader Forest of Dean will be deprived of a wide variety of socio-economic benefits which include a community resilience fund of around £500k.”

She also claimed that it could also cost the Dean £1,5 million towards green initiatives and added: “The decision may be celebrated by the small minority who opposed the approved project but in reality we consider this to be a massive loss for the community as a whole and clearly undermines local democracy.”

The Forest of Dean District council’s planning committee overuled officer’s advice with 10 votes in favour to three against and one abstention

.A spokesperson for the Forest of Dean District Council said: “The Council is disappointed with the judgment and will now take time to consider its position.”

Before the case green energy suppliers had voiced concerns that a win for Mr Wright could make it more difficult for them to get crowd-funded turbines off the ground in future.

But Mr Wright said it would stop them “creating a wind farm landscape by stealth” in sensitive areas such as the Severn estuary.”If successful, this challenge will ensure that no other council can act with such impunity in the face of the overwhelming views of the local community and in breach of planning guidelines regarding alleged community benefits,” he said at the time.

But Ms Clarke, insisted the judgement took no notice of changes to planning guidelines on the desirability of community led projects and letting local people decide on wind turbines.

She said funds from the St Briavels turbine had been used for projects such as the expansion of St Briavels Playgroup, a roving village handyman and a Christmas meal for OAPs.

“We are sad that the outcome has not been the one we all hoped for, and which the community sector needs,” she said.”We believe there is a strong case to appeal the decision and are currently considering our options,” she added.

To view the original article CLICK HERE

Regards,
Greg_L-W.

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Judgment final of Mr. Justice DOVE – HIGH COURT – re: Wind Turbine, Hanley Hill, Stroat.

Judgment final of Mr. Justice DOVE – HIGH COURT – re: Wind Turbine, Hanley Hill, Stroat.

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Posted by:
Greg Lance – Watkins
Greg_L-W

eMail: Greg_L-W@BTconnect.com

~~~~~~~~~~#########~~~~~~~~~~

12-Jun-2016
Judgment final of Mr. Justice DOVE
– HIGH COURT –
re: Wind Turbine, Hanley Hill, Stroat.

 

Hi,

ROYAL COURTS of JUSTICE 01

Judgment final

CLICK ON: Judgment final to read the full Judgement of:
Mr. Justice DOVE
In .pdf format.

YOU WILL NOTE:

Tthe written Judgement which runs to 52 pages and over 17,000 words is very clear in its conclusions which start at Page 43 (sect 47), if you do not want to read the whole thing.
If you feel anyone else in the affected community might want to read the judgement please draw this page (URL) to their attention. Do also draw the Judgement to the attention of anyone else you know or are in contact with who is seeking to prevent the despoilment of the countryside due to the errection of a wind turbine which by its very construction is hugely damaging to the environment and of zero net gain to the public or particularly the affected community. Wind Turbines are a grossly inefficient and unreliable way of producing energy yet they take a great deal of very polluting energy to manufacture and instal!
There is also of course the environmental damage in terms ofvibration, flicker and the birds and bats battered to death by tjhem not to mention the damage to the visual amenity.
It is NOT a matter of ‘NIMBYism’ that leads me to be so opposed to these monstrous carbuncles on our landscape but the pure dishonesty of so many of the applicants and the greed and avarice that leads them to believe that syphoning money out of the pockets of many who can ill afford extra costs should be used to subsidise their avarice and greed.
It has yet to be shown that there is any moral, material or economic gain for the society and mankind at large in errecting these monstrous structures, yet it is clear and irrefutable that they are damaging on many counts.
Happy reading and we shall be in touch again soon, when we hear details on recovery of costs from the FoDDC – I am assured that any net gain in funding from repayment of costs by FoDDC, Crowd Funding Donations or Donations from any other sources will be used to fund further battles to oppose attempts to impose further such whitye elephants in the immediate area and any surplus to that will be used to aid in opposing Wind Turbines elsewhere.
Thank you to all for their donations so far and particularly to those who risked so much and put in so much work researching, transcribing and in pure leg work delivering leaflets and attending meetings. We are still hoping for further donations to assist in battles ahead as greed and self serving arrogance rarely evaporates, and we expect further applications to materialise!

Below is the full text, amounting to almost 17.1/2K words on 52 pages
In Plain Text:

Neutral Citation Number: 2016 EWHC 1349 (Admin)
Case No: CO/5501/2015
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)
Date: 09/06/2016
Before :
MR JUSTICE DOVE
– – – – – – – – – – – – – – – – – – – – –
Between :
THE QUEEN (on the application of PETER WRIGHT)
Claimant
– and –
FOREST OF DEAN DISTRICT COUNCIL
Defendant
– and –
RESILIENT ENERGY SEVERNDALE LTD
Interested Party
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
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: 21st April 2016
– – – – – – – – – – – – – – – – – – – – –
Judgment Approved by the court
Mr Justice Dove :
Introduction
1. 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
2. On 29th 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.”
3. 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.”
4. 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,”
5. 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).”
6. 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 the operational St Briavels turbine a similar Community Fund is already delivering on a similar commitment as well as already providing returns to its community investors. It has funded a number of projects of local community benefit, as selected by an advisory panel of local people.

As a social purpose business, The Resilience Centre is committed to reinvesting in further projects which help to build resilience in society in the context of climate change and depleting resources. As the portfolio of renewables partnership projects develops, providing business investment capital, additional skilled employment opportunities will be created in a number of specialisms to deliver this broader sustainable development vision more widely from a local Forest of Dean base.”
7. The application was also accompanied by a Planning Statement which dealt with matters associated with planning policy and renewable energy policy. In the section on the benefits of the proposal the Planning Statement recorded the views of the author of that document in the following terms:
“3.4.6 Unlike the major commercial wind farm developments, this is one of a new range of community wind projects where the applicant will be offering shares to fund the project to the local community as well as setting up a community fund to be administered by local trustees. It is not suggested that any weight should be given in the decision-making process specifically to the presence of this fund, but the positive social and economic impacts that will result are material considerations in the decision-making process, and the direction of travel by Government in announcements during 2014 is clear. The recent announcement by the Government of the desire to see more community involvement in the decision-making process for onshore wind turbines as well as the community receiving more in the way of benefits from such developments clearly chimes with the type of proposal involved in this application. Indeed, in January 2014 DECC published its Community Energy Strategy Full Report placing communities at the heart of the debate as to how to engage local people in the energy process. The Resilience Centre is one of the pioneers of this new emphasis, having already erected one community wind turbine in the Forest of Dean to its award winning Resilient Energy partnership model and having consents for three more (two in Stroud District and the other in the Forest of Dean). ”
8. Following a site visit by members of the planning committee on 23rd June 2015 officers wrote and published a committee report so as to enable an informed consideration of the application at the defendant’s planning
committee on 14th July 2015. This report recorded representations that had been made both in support of and opposition to the development proposal. The claimant had objected and both at this stage and subsequently had made representations opposed to the development. In respect of the proposed socio-economic benefits of the development the officers provided their opinion in the following terms:
“The applicant indicates that the local community would be provided with the ‘opportunity’ to invest in shares in the scheme with an envisaged return of 7%. In addition, an annual return of approximately 4% of the gross revenues is proposed to be donated to the host community via a Community Fund. The applicant refers to similar schemes that are operational and or pending construction. In considering the economic contributions that the applicant has indicated, while there are similar schemes that may or may not be in operation, there is no formal agreement or arrangements with shareholders and/or the local community in place for this particular proposal. While the applicant’s intention is not in question there are no clear controls and/or enforcement measures that could ensure that these are delivered; no shareholder agreement or clear beneficiaries to any community trust fund. The proposal therefore falls outside of the planning remit. In addition, the fund could be used to finance projects that would be unconnected with low carbon energy generation and therefore be contrary to the ethos of renewable energy. It is therefore considered that whilst such a contribution of payments to the local community may be desirable and may be one which could be seen as a strong reason for granting permission for a renewable energy scheme, in line with a recent appeal ‘called in’ by the Secretary of State for a solar farm at Wroughton, Swindon, the community benefit does not meet the above- mentioned requirements and in fact falls outside the scope of section 106(1) of the Town and Country Planning Act 1990 and fails the tests set out in Regulation 122 of the Community Infrastructure Levy Regulations 2010 as amended.
In view of the above these contributions cannot be a material consideration and members should not give them any weight in assessing the planning merits of this application. In addition, while there would inevitably be economic benefits generated through a low level of local employment during the construction and delivery of the scheme this would be of a temporary nature. ”
9. The interested party did not agree with aspects of the officer’s report and wrote to the defendant making representations in relation to it on 10th July 2015. In relation to the creation of a formal and legally binding commitment to deliver the socio-economic and community benefits of the proposal the letter stated as follows:
“Formally and legally binding commitment to deliver community benefits:
The Directors of Resilient Energy Severndale Ltd, the applicant, have provided legally binding written confirmation (dated 9th July 2015) that the project, if approved, will be developed through a recognised legal structure whose purpose is to deliver social environmental and economic benefits for the local community (a Community Benefit Society). This would mirror the legal structure of the existing Community Benefit Society which similarly owns the Alvington Community Turbine project. ”
10. In its conclusions, the letter alluded to substantial public benefits which would accrue if planning permission were granted for the wind turbine. These matters were further detailed in Appendix 3 attached to the letter. The Appendix provided a broadly similar list of socio-economic benefits to those which had been set out in the Environmental Report and are quoted above. The Appendix also referred to and relied upon the financial benefits which would arise from the local community donation. This was expressed in the following terms:
“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 the latest
Government guidance (at around £40,000/MW versus £5,000/MW installed).”
11. Consideration of the interested party’s application was deferred at the planning committee meeting of 14th July 2015. The following day the interested party wrote to the defendant in order to encourage them to reach an early determination of their planning application. In that letter the interested party set out its position in the following terms:
“With regard to the above planning application we would like to clarify and formalise our commitment regarding the proposed Community Ownership structure and can confirm that the project will be brought forwards as a Community Benefit Society, if planning consent is obtained. Furthermore the project would commit a total fund of £500,000 of Community Benefit directly to the local area over the first 20 years of operation of the project, to be distributed by a locally self appointed panel of stakeholders plus any additional surplus from the operation of the Society, estimated to be an additional £600,000 over the first 20 years of operation, a total of up to £1,100,000 in direct community benefits.
However, the ability to meet these commitments is time crucial as in the recent budgetary announcement the Chancellor instructed the Energy Minister to complete a mid season term budgetary review of Feed in Tariffs, currently underway and expected to deliver a revised degression ahead of the current Feed in Tariff degression date of 30th September.”
12. A further officer’s report was prepared to address the interested party’s concerns running up to and following the meeting of 14th July 2015. An update to the committee report was prepared for members so as to equip them for considering the application at a meeting on 11th August 2015. The updated report addressed a relatively recent Ministerial Statement in relation to wind energy proposals which had been made on 18th June 2015. The officer’s analysis of that policy together with their views in relation to the issues of socio-economic benefits and in particular the local community donation proposed were set out in the update report in the following terms:
“Further to the above while the applicant is in disagreement with the calculated figures within the officer report and that the Ministerial Statement should not be applied to this application as it is existing. It is considered that this assumption is incorrectly applied as the Ministerial Statement of the 18th June 2015 is quiet (sic) clear in indicating that during the transitional period where a valid planning application for wind energy has already been submitted to the LPA and the development plan does not identify suitable sites that the following transitional provisions apply:
“In such instances, the local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.”
In light of this the LPA undertook re-consultation to seek clarification on the level of local community support. Having re-consulted with statutory consultees, local residents and contributors (petition not included) it is noted that 58 representations have been received. It is clear that those within the Parish of Tidenham (Local Community to which the applicant has indicated would benefit from the scheme and to which the Ministerial Statement refers) are not fully supportive of the proposal and have reiterated their concerns regarding the adverse impacts that this development would create on the surrounding environment. It therefore remains that the local community are not considered to be in support of the application. The concern/objections of the local community have not been overcome.
The proposed procedure for the establishment and operation of a community benefit, grant fund, society and energy fund cannot be enforced and the Option Agreement is an option not a guarantee, which again cannot be enforced and therefore conditioned. It is therefore not considered that this is material to the determination of this application. Having regard to the representations received from near neighbours whilst there is concern over the application being presented to the August planning committee it is considered that there is sufficient information to achieve this deadline having considered the applicant’s late submission and reconsulted with statutory consultees and the local community therefore no further delay in determination is warranted.”
13. The publication of this update by the officers provoked further correspondence from the interested party. The interested party was in particular concerned in
relation to the officer’s analysis of local support. In a letter dated 7th August 2015 the interested party provided the following representations:
“2) Consideration of Public Benefits of the Proposal
 The Officer Report takes into account no social, environmental and economic benefits of the proposal believing they need to be legally guaranteed in order for this to be possible. This is incorrect.
 The considerable social environmental and economic benefits of similar proposals in a neighbouring district were afforded considerable weight in the planning balance and also in the Inspector’s decision for the Alvington Appeal as evidenced in the Applicant submission dated 10th July.
 The positive aspects of a proposal are required to be considered along with any adverse effects and a core requirement of the NPPF is such a balancing exercise.
 There is no reasonable justification for disregarding the considerable social, environmental and economic benefits.
 The lack of a correct balancing exercise having been undertaken by the FoD council was a key consideration in the Alvington turbine appeal.

5) Concluding remarks
The proposed community benefits are considerable (between £500,000 and £1 million, for direct community benefits over the life of the project, plus additional social environmental and economic benefits as outlined in the application and as an appendix to the Applicant response dated 10th July). The project would be a community owned and operated project which benefits local communities and local businesses. There are many similarities of this proposal with the Alvington proposal (consented on Appeal) in terms of both landscape impacts and the proximity of heritage assets (including both listed buildings and a schedule monument/villa). There is no clear justification from the authority, given a correct balancing exercise and recognition of the identical public benefits to Alvington, why this application cannot be similarly approved.”
14. The reference in this correspondence to the Alvington turbine appeal was a reference to a recent appeal decision dated 6th August 2014. Alvington is a village within the defendant’s administrative area. The proposal which was the subject of the appeal was a similar scheme for a wind turbine to that which was before the defendant. The application which had led to that appeal had also been made by the interested party, and the Inspector in concluding that planning permission should be granted had addressed the question of the socio-economic benefits in the following terms:
“32. Paragraph 004 of the same PPG Chapter refers to the likely increasingly important role of community initiatives which should be encouraged as a way of providing positive local benefits from renewable energy development. In this case the proposal is a community wind project with associated social and economic benefits. I have no reason to doubt the Appellant’s statement that a community investment scheme will be offered to fund the project with local investors sharing directly in the operating surplus. A similar scheme has already been established in the same District at St Briavels. As the turbine would provide significant income for the farmer, it is also likely that some of these funds will be spent on necessary maintenance of the listed building.
33. There are a significant number of representations of support from local people including a number of residents of Alvington, the nearest village. However there are also local objections, including the parish councils of Alvington and Aylburton.
34. The Council’s Officer Report and Appeal Statement did not explicitly assess the public benefits of the proposal or carry out a balancing exercise before concluding with the assertion that the scheme would not deliver proportionate public benefits. The Council’s Appeal Statement suggested that there is an absence of an overriding justification based on necessity, however that is not a national policy test. Indeed the Framework explicitly states at paragraph 98 that applicants for energy development should not be required to demonstrate the overall need for renewable energy.
35. It is concluded that the scheme’s generation of renewable energy would be a benefit of considerable weight and importance both locally and nationally, particularly as it is a
community-led initiative of the type which the Government seeks to encourage.”
15. Having received this further information the officers prepared a final update for members dealing with these representations. That update observed as follows:
“…With regard to the additional representations from the applicant the following clarification is given.
 A review of the Alvington appeal decision confirms that the benefits of the proposal are a material consideration and weigh in favour of the development.
 It is a matter of fact that representations for and against the application have been received. However planning decisions are not taken on the basis of a popularity contest and should be taken based upon the material planning considerations relevant to the proposal.
 The recent government change of policy does place emphasis on a proposal needing to address the concerns of affected local communities. It is a matter for members of the planning committee to determine whether the issues raised by the objectors have been addressed.
In conclusion, the benefits of the scheme in terms of the provision of renewable energy and being a community led initiative weigh in favour of the development. However, in this case it is not considered that these benefits outweigh the identified harm in terms of the impact upon the landscape and to heritage assets…”
16. Within the papers with which the court was provided were both the formal minutes of the meeting of the planning committee on 11th August 2015 at which all of these matters were considered, and also a transcript of the debate which was had by the members leading up to their determination. Whilst submissions had been made both in writing and orally as to the effect of that documentation a consensus emerged at the hearing as to what was to be taken from the documents, following which it was agreed that there was no purpose
to be served by any further debate about their contents. It is therefore not necessary for the purposes of this judgment to set out the contents of those documents. The consensus between the parties was that what those documents demonstrated was that having considered the planning merits of the proposal, including the socio-economic benefits, the members concluded by a majority that planning permission should be granted. It was accepted on all sides, and in particular on behalf of the defendant, that the members had included the local community donation fund as a material consideration in favour of the proposals as part and parcel of the basket of socio-economic benefits which were relied upon by the interested party. In other words, the members took into account as a positive feature of the proposals that 4% of the turnover of the wind turbine would be donated to the community for them to spend on projects, activities and initiatives for the benefit of the community as determined by a panel of people selected from the community. Importantly the members caveated their support for the proposal with a requirement that there should be a pre-commencement condition to secure the community benefits. The nature of that condition was agreed very shortly after the members’ resolution in correspondence between the defendant and the interested party. It was agreed that this requirement of the members could be satisfied by a pre-commencement condition which required the development to be carried out by Community Benefit Society.
17. On 19th August 2015 the Department for Communities and Local Government issued a direction pursuant to article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 prohibiting the defendant from issuing a planning application whilst the Secretary of State
gave consideration to whether the application should be called in for his own determination. That direction was withdrawn by a letter dated 29th September 2015. On 30th September 2015 the defendant granted planning permission to the claimant for the development as described in the application. The development was made subject to a number of conditions. For the purposes of this judgment the only pertinent condition is condition 28 which provided as follows:
“28. 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.”
18. Both the claimant and the interested party introduced evidence which it does not appear was directly before the defendant as decision-maker as part of the evidence in relation to the application. As this material formed the subject matter of written and oral submissions it is necessary to set it out below. It is, however, important to appreciate that these matters did not form part of the defendant’s decision-making process.
19. The claimant adduced evidence in relation to the local community donation and the way in which that had been publicly described as part of the consultation process. In particular, the claimant provided a witness statement in which he described attending a presentation made by the interested party as follows:
“6. I attended a presentation made by Andrew & Susan Clarke, Directors of The Resilience Centre Ltd to Tidenham Parish Council in May 2015. At that meeting Andrew Clarke described how the community fund from the wind turbine at St Briavels had been used. The funds were said to have been used for things including a defibrillator for the village halls, a Senior Citizens trip to Westonbirt Arboretum, installation of heaters in the St Briavels Church, playgroup equipment amongst others. None of the uses described related to renewable energy.”
20. The claimant exhibited to the witness statement the material described in his evidence as to how the community fund at St Briavels had been distributed. This was a document originally produced by the interested party and that provides as follows:
“The total amount available for allocation at the May meeting of the St Briavels Wind Turbine Community Fund Advisory panel was £10,300. Applications to end April 2015 were considered by the Advisory Panel, and the following award allocations were made.
£2,500 (in match funding): to the Friends of St Briavels Church towards required maintenance of the Grade 1 listed landmark, and installation of pew heaters to make the building more readily usable throughout the year by the community at large. The group intend to run a raffle and a major fundraising event on 27th June 2015. A match funding approach was requested in the application to encourage the whole community to get behind the project. The panel were impressed by the suggested approach which shows great commitment and strong community spirit.
£1,500: to the Charles Lord Denton Almshouses, a local charity which provides secure and affordable accommodation to older people who have a reasonable need. The funding will help with repair costs recently incurred and planned including drainage work, pathway ramp repairs, gable painting and chimney replacement.
£500 to St Briavels Parish Council towards the creation of a village handyman service. The panel agreed with the council that the village could benefit from a general tidy and completion of some simple village maintenance tasks. The panel look forward to seeing the benefits for the village over the next six months and would be happy to consider further applications at future funding rounds.
£552 to Heartbeat St Briavels to cover 12 months maintenance of the publicly accessible village defibrillators which are located at the Assembly Rooms, the Pavillion, Lindors and the fourth soon to be installed outside the school gates. The panel were pleased to hear that 100 people have now been trained in the use of the potentially lifesaving equipment and would be happy to consider further applications on an annual basis.
£250 to the St Briavels Playgroup towards purchase of replacement waterproof clothing to enable the youngest members of the community to participate in scheduled outdoor Forest activities to nurture an appreciation of the natural environment, even in inclement weather.
£350 to the St Brivaels Lunch Club which provides older citizens with a regular meal and chatter. The club has been run by the same team of dedicated volunteers for the last 8 years and the panel felt that their community commitment deserved recognition. The funds will enable the group (including volunteers) to be treated to a meal at a local pub.”
21. The interested party adduced evidence from Mr Andrew Clarke who is a director of the interested party and also involved in a number of projects promoted by The Resilience Centre. In the evidence, Mr Clarke emphasises the community focus of the application and the approach taken by The Resilience Centre to promoting renewable energy projects. He also sets out, as did the material accompanying the application, the socio-economic and community benefits which arise from the approach taken by the claimant. Importantly, he provides detailed information about the proposed Community Benefit Society in the following terms:
“10. The development will progress only via the legal structure of a Community Benefit Society, in accordance with condition 28 of the Planning Permission. It is intended that the society rules for Resilient Energy Alvington Court Renewables Limited (which have been approved by the Financial Conduct Authority with whom the society has been registered under the Co-Operative and Community Benefit Societies Act 2014), will be replicated for the Community Benefit Society established for development of the Resilient Energy Severndale turbine. Key features may be summarised as follows: The Objects of the Society are to carry on any business for the benefit of the
community which involved the development, financing, construction, installation, generation, transmission, operation and/or (if required) sale of a community sustainable energy generation project, for the purpose of
a) generating electricity/heat from renewable energy resources;
b) generating income for, and/or to be able to provide grants to, one or more Community Organisations, Persons and/or businesses within the community served by the society;
c) developing a revolving fund to facilitate grants for alleviating fuel poverty and/or improving energy security by installing solar photo voltaic panels on residential properties;
d) enabling the local and wider community to engage with community sustainable energy generation; and,
e) supporting educational and/or other community activities which promote awareness of environmental and related issues.
The Society shall be owned and controlled by its Members on a fair and equitable basis.
It is intended that the host communities of Tidenham parish and environs will receive the greatest community benefits from the project, and this will accordingly be written into the society rules. This will also be detailed in the Share Offer document, which will be prepared in 2016. This will include projections based on financial modelling utilising an independently verified wind yield assessment for the project. As with Resilient Energy Alvington Limited, the Resilient Energy Severndale society will have a board made up of 6 Directors; 2 representing the landowner, 2 representing The Resilience Centre and 2 representing the Community. Members will elect community representatives to the Board at the first AGM. The Severndale Wind Turbine Community Fund Advisory Panel will be established within the first 12 months of turbine operation. Advertisements will be placed in the Parish newsletter and local press inviting community minded volunteers to put themselves forward.”
The grounds
22. The case is advanced on behalf of the claimant by Mr Neil Cameron QC on two grounds. Ground 1 is that the local community donation (that is to say the donation of 4% of the turnover from the project to be distributed by appointed members of the community set out in the application documentation) which
was part and parcel of the application and considered as one of the benefits telling in favour of the grant of planning permission was not a material consideration that the defendant could lawfully have taken into account. It amounted in effect to a financial donation which did not serve a planning purpose, was not related to land use and had no real connection with the development proposed. As a consequence of taking into account an immaterial consideration the defendant’s decision was infected with illegality such that it should be quashed.
23. The claimant’s Ground 2 is that condition 28, which as set out above requires the development to be carried out by a particular form of legal entity, did not serve a planning purpose and was not related to land use. As such, the condition did not pass the legal tests required since the condition did not pass the tests necessary to establish that it was a lawful condition and thus, again, the decision was infected with illegality. In that the condition was imposed as a requirement of the committee and went to the root of the permission it could not be excised or severed from the planning permission without the entire planning permission falling.
The law
24. The decision as to whether to grant or refuse planning permission is governed by the Town and Country Planning Act 1990 which provides as follows:
“s70 (1)Where an application is made to a local planning authority for planning permission—
(a)subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b)they may refuse planning permission.
(2) In dealing with such an application to authority shall have regard to –
(a) the provisions of the development plan, so far as material to the application…
(b) any local finance consideration, so far as material to the application, and
(c) any other material considerations

(4) in this section –
“local finance consideration” means –
(a) a grant or other financial assistance that has been, or will or could be, provided to a relevant authority by a Minister of the Crown, or
(b) sums that a relevant authority has received, or will receive, in payment of Community Infrastructure Levy”
25. A further important statutory requirement in relation to the exercise of the discretion to grant planning permission is contained within section 38(6) of the Planning and Compulsory Purchase Act 2004 which provides as follows:
“s38 (6) 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.”
26. The question of what should properly be regarded as a material consideration as a matter of law was considered by the House of Lords in the case of Newbury District Council v Environment Secretary [1981] AC 579. The context of that case was related in particular to the imposition of conditions
and when it would be lawful to impose conditions. In the course of his speech Viscount Dilhorne observed as follows:
“It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them”
27. The House of Lords returned to the question of what might amount to a material consideration for a planning decision as a matter of law in the case of Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661. This case arose in the context of a challenge to policies in a development plan which sought to protect specific industrial activities in central London. A property company contended that this policy was unlawful. The basis of this contention was that the policy was not concerned with the development and use of land but rather with the protection of particular users of land namely the businesses carrying on the industrial activities which the policy sought to protect and retain within central London. Lord Scarman addressed the question of principle and also the manner in which the principles applied in the context of the case in the following terms:
“My Lords, the principle of the law is now well settled. It was stated by Lord Parker C.J. in one sentence in East Barnet Urban District Council v. British Transport Commission [1962] 2 Q.B. 484. The issue in that case was whether the use of a parcel of land constituted development for which planning permission was required. The justices found that it did not and the Divisional Court, holding that the question of change of use was one of fact and degree, refused to intervene. In the course of his judgment, with which the other members of the court agreed, Lord Parker C.J. said, at p. 491, that when considering whether there has been a change of use ‘what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier.’ These words have rightly been recognised as extending beyond the issue of
change of use: they are accepted as a statement of general principle in the planning law. They apply to development plans as well as to planning control…
It is a logical process to extend the ambit of Lord Parker C.J.’s statement so that it applies not only to the grant or refusal of planning permission and to the imposition of conditions but also to the formulation of planning policies and proposals. The test, therefore, of what is a material ‘consideration’ in the preparation of plans or in the control of development (see section 29(1) of the Act of 1971 in respect of planning permission: section 11(9), and Schedule 4 paragraph 11(4) in respect of local plans), is whether it serves a planning purpose: see Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578 , 599 per Viscount Dilhorne. And a planning purpose is one which relates to the character of the use of land. Finally, this principle has now the authority of the House. It has been considered and, as I understand the position, accepted by your Lordships not only in this appeal but also in Westminster City Council v. British Waterways Board [1985] A.C. 676 in which argument was heard by your Lordships immediately following argument in this appeal.
However, like all generalisations Lord Parker C.J.’s statement has its own limitations. Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control…
A fair interpretation of this part of the plan is that the council was concerned to maintain, as far as possible, the continuation of those industrial uses ‘considered important to the diverse character, vitality and functioning of Westminster.’ Here was, in paragraph 11.26 of the plan, a genuine planning purpose. It could be promoted and perhaps secured by protecting from
redevelopment the sites of certain classes of industrial use. Inevitably this would mean that certain existing occupiers would be protected: but this was not the planning purpose of the plan, though it would be one of its consequences.”
28. Thus it was held in that case that, properly understood, the policy was designed to protect land uses and not the particular occupiers who were carrying on those land uses. As such, the policy served a planning purpose and was lawful.
29. The courts have also had to grapple with the question in this area of the law of when the provision of benefits or the payment of monies can properly be regarded as being a material consideration. In City of Bradford Metropolitan Council v Secretary of State [1987] 53 P&CR 55 at page 64 Lloyd LJ observed:
“It has usually been regarded as axiomatic that planning consent cannot be bought or sold. As a broad general proposition that must be true.”
30. This broad proposition is undoubtedly grounded, at least in part, in the public interests which are engaged in the question of whether or not planning permission should be granted. This observation led to the courts having to consider whether financial considerations could properly be regarded as a material consideration in the determination of planning applications and in that connection where the boundaries of what might lawfully amount to a consideration could be drawn. The question was examined by the Court of Appeal in the case of R v Westminster City Council ex parte Monahan [1990] 1 QB 87. The case concerned a development scheme for Royal Opera House, Covent Garden. The improvements to the Royal Opera House and its extension, which plainly brought about public benefit in terms of the
enhancement of cultural facilities, were not in and of themselves financially viable. They could only be achieved financially as a consequence of the inclusion within the development scheme of office development which was contrary to the development plan. The proposal was advanced as a single comprehensive development scheme which, viewed overall, was financially viable even if the individual ingredient of the improvements to and extension of the Royal Opera House was not. In the challenge to the planning permission that was granted for the development proposal, the first issue was whether the material considerations in the planning decision could properly include financial considerations. Kerr LJ concluded that they could as follows:
“The first issue: can “any other material considerations” in section 29(1) properly include financial considerations?
This issue can of course be phrased in many differently contentious ways. If one seeks a negative answer one might pose the question whether it can possibly be permissible to authorise a development which, in planning terms, is undesirable or even indefensible in order to provide funds for some other desirable development. On the other hand, a more moderate way of putting the issue would be to ask whether, as a matter of common sense, there could be any reason why the financial viability of a desirable development, and the means of achieving it, must necessarily be immaterial considerations in determining applications for planning permission. Similarly, one can argue by giving illustrations at different points of the spectrum. For instance it was said on behalf of the applicants that it would be inconceivable that if R.O.H. happened to own a site near Victoria it would be allowed to use it for the erection of an undesirable office block on the basis that the profits would be used to extend and improve the Royal Opera House. The respondents did not accept that this was self-evident if no other means were available and countered with more realistic illustrations to demonstrate the fallacy of the proposition that purely financial considerations can never be material. For instance, if it is uneconomic to restore a derelict listed building for its original residential or other use, then it would be perfectly proper and an everyday situation for a planning authority to allow it to be used wholly or partly for commercial purposes, if its restoration cannot in practice be achieved in any
other way. Or – to take an example given by Mr. Boydell – in the case of a landmark or tourist attraction such as a derelict old windmill, a planning authority might well decide to permit the owner to put up an otherwise undesirable kiosk to sell postcards and souvenirs if this is the only viable way of obtaining a desirable restoration.
This was the nature of the opposing contentions. In my view, for the reasons which follow, I have no doubt that the respondents’ approach is correct in principle, and I would summarise it in the following way. Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise. A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could, or would in practice, otherwise not be carried out for financial reasons. Another, no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, i.e., related in the sense that they can and should properly be considered in combination, where the realisation of the main objective may depend on the financial implications or consequences of others. However, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation.”
31. These issues returned to the Court of Appeal in the context of the case of R v Plymouth City Council ex parte Plymouth and South Devon Co-operative Society Ltd [1994] 67 P&CR 78. That case was concerned with three supermarket proposals advanced by Sainsbury, Tesco and the Co-Op. The Sainsbury proposal was accompanied by on-site features incorporated in the development in the form of a tourist information centre, a bird hide for bird watching overlooking the river Plym, and off-site financial contributions in the
form of payments for a park and ride site and the provision of £1 million towards the costs of providing highway and drainage infrastructure to enable the development of an industrial site within Plymouth. This latter contribution towards enabling the release of industrial land resulted from recognition by Sainsbury that if their supermarket proposal went ahead it would involve the loss of industrial land. The package of contributions proposed by Tesco in support of their supermarket included a wildlife habitat on a site which was contiguous with the development, the sale to the local planning authority of a site for a park and ride facility and a financial contribution towards a crèche. The council considered all three of the supermarket applications at a committee meeting in which they resolved to grant the applications made by Sainsbury and Tesco and defer the application made by the Co-Op. The Co-Op challenged the council’s decision on the basis that the offers associated with the Sainsbury’s and Tesco’s developments exceeded what could properly be regarded as material considerations as a matter of law. This contention was rejected. Russell LJ concluded as follows:
“I reject as unarguable that any of the obligations volunteered by Sainsbury and Tesco and the acceptance of them even approached “Wednesbury” unreasonableness, and I simply ask myself whether each and every one of them were capable of being regarded as having a planning purpose and whether each and every one of them related to the permitted development. So far as benefits which were to be provided on site there does not appear to me to be the slightest difficulty or room for argument. They made the development more attractive and that must surely be in the public interest.
As to off site benefits, in particular the offer of a sum of up to £1 million by Sainsbury, and the offers of contributions toward the alleviation of traffic problems in the way of park and ride facilities, both plainly had planning purposes. It is common knowledge that park and ride facilities reduce vehicular traffic; a superstore would create vehicular traffic; the one would
counteract the other and accordingly in my view the park and ride facilities plainly related to the development proposed and was for a planning purpose.
The offer of £1 million was not in any sense divorced from Sainsbury’s application to develop their store. The evidence from Mr. Dean was that sites available for industrial development within the city of Plymouth were not plentiful, and that by permitting the development at Marsh Mills for retail outlets the planning authority was further reducing the pool of resources for employment land. The offer in relation to Derriford Barton was a contribution toward restoring the balance disturbed by the grant of permission at Marsh Mills. In my judgment this, too, passed the Newbury test and the planning authority was entitled to take it into account as material to its planning decision. It is not material to enquire into the precise part played by these benefits in the decision reached by the planning authority. The reasons for granting permission are not disclosed though in passing it is worthy of observation to note that Hutchison J. did not seem to regard the benefits as “determining factors which led to the Council’s decisions.” Those decisions, he thought, “were based on planning issues and particularly on the fact that no demonstrative harm to interests of acknowledged importance flowed from either or both proposals.”
32. Hoffmann LJ (as he then was) reached the same conclusions and his reasons for doing so both in general and in relation to the particular contributions were as follows:
“What in this context is a “material consideration?” The answer appears in the decision of the House of Lords in Newbury District Council v. Secretary of State for the Environment which concerned the vires of a condition attached to a planning permission. Viscount Dilhorne said such a condition must satisfy three tests:
(1) It must have a planning purpose;
(2) it must fairly and reasonably relate to the permitted development, and
(3) it must not be Wednesbury unreasonable.
(1) and (2) are tests of materiality: in this context, considerations are material if they are planning considerations and fairly and reasonably relate to the development. The third test does not go to whether considerations are material but is an
overriding requirement that the authority’s decision (to grant or refuse permission, impose a condition, require a section 106 agreement) shall not be Wednesbury unreasonable. Lord Scarman at page 618 said that most cases of Wednesbury unreasonableness would arise out of the authority haying regard to considerations which failed one of the first two tests (or failing to have regard to considerations which passed them). But there might be exceptional cases in which a decision was Wednesbury unreasonable notwithstanding that it was based upon all the material considerations…
I therefore reject the suggested gloss upon the Newbury tests for materiality and consider whether they were satisfied by the matters which were proposed to be included in the section 106 agreements in this case. They all amounted to considerations of a planning nature and the only question is whether they fairly and reasonably related to the development. Many of them, such as the construction of the tourist centre and bird watching hide, were to be constructed upon or adjacent to the development itself. They were matters of benefit to the developer as well as to the community. I do not see how it can possibly be said that such embellishments did not fairly and reasonably relate to the development. The only benefits which in my judgment give pause for thought are the two substantial sums offered by Sainsbury as a contribution to work to be done away from the site. They are the £800,000 contribution to a park and ride facility and the contribution of up to £1 million for infrastructure on a new industrial site at Derrisford Barton.
Mr. Peter Watkins, of the Devon County Council Highways Department, said that the proposed superstores would have a traffic impact over a wide area of the local highway network. The beneficial effect of a park and ride facility would be to remove traffic from the main radial commuter/shopper routes, thus reducing conflict with traffic heading for the proposed superstore. In addition to this general causal link, Mr. Dean added that there were arguments for utilising part of the Sainsbury site itself for decked car parking to accommodate the park and ride, but Sainsbury preferred the park and ride cars to be accommodated elsewhere. If such accommodation were provided off the site, fewer people would use Sainsbury’s own car park when they really wanted to park and ride rather than shop at Sainsbury. In my judgment this was evidence upon which the judge was entitled to decide that the park and ride facility was fairly and reasonably related to the development.
As for the infrastructure contribution, Mr. Dean said that there was a shortage of serviced and level sites available for the development or re-development of manufacturing in the city of Plymouth. The council considered that such land should be
available to foster new employment opportunities and Policy EM9 of the structure plan said that the use of employment land for retailing would not normally be permitted. It was true that in recent appeals to the Secretary of State concerning other superstores, little weight appeared to have been attached to this policy. But, as I have pointed out, the fact that a policy might not be upheld on appeal does not mean that a planning authority is not entitled in law to treat it as a material consideration. In this case, the council regarded the improvement of other land by Sainsbury as a compensating advantage, equivalent to the release of the Vosper site near the docks in the Tesco proposal. The offer, it should be noted, was not simply to pay the council f 1 million. It was to contribute up to £1 million to the actual cost of infrastructure works undertaken by the council within a period of two years at a specific site. In my judgment this benefit was also fairly and reasonably related to the development.
It follows that in my view the judge was right to hold that the council was entitled to treat all the matters in the packages of community benefits as material considerations and this attack on the vires of the decision to grant planning permission must fail.”
33. Shortly after this case had been decided a similar issue came before the House of Lords in the case of Tesco Stores Limited v Secretary of State [1995] 1 WLR 759. That case was also concerned with the provision of out-of-town supermarkets. In that case two developers applied for planning permission for out-of-town supermarkets on sites in the town of Witney. One developer, Tesco, offered to provide full funding of £6.6 million for development of a link road which had been designed to assist traffic conditions in Witney. The application by Tesco and a rival application promoted by Tarmac were both called in by the Secretary of State for his own determination.
34. The Inspector, following the holding of a public inquiry into the two proposals, recommended the grant of planning permission to Tesco and refusal of the Tarmac proposal. The Inspector concluded that there was some, but only a tenuous, relationship between the Tesco supermarket and the funding of
the link road which had been proposed. The Secretary of State having considered the Inspector’s report rejected her recommendations and refused the Tesco’s scheme and granted planning permission to Tarmac. The Secretary of State considered that in the light of the low levels of traffic generated by the supermarket which would be using the road and also the distance of the road from the supermarket site that it would be unreasonable to seek even a partial contribution from the developer of the supermarket to the road. The Secretary of State went on to conclude that, even if he was wrong that it would be unreasonable to seek even a partial contribution towards the road, then the weight which could be attached to any partial contribution was so slight or limited that the balance of the arguments would not have been affected so as to change his decision. The Secretary of State’s decision was challenged by Tesco on the basis that they contended the Secretary of State had wrongly failed to treat their offer of funding for the road as a material consideration. The House of Lords concluded that on a fair reading of the decision letter the Secretary of State had not treated the contribution as immaterial and had in fact weighed it in his assessment of the planning balance. In the course of their speeches both Lord Keith and Lord Hoffmann addressed the question of when, as a matter of law, something became a material consideration in the planning balance. Lord Keith observed as follows:
“An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the
decision maker and in exercising that discretion he is entitled to have regard to his established policy.”
35. Lord Hoffmann, in expressing his conclusions, directly addressed the question of buying and selling planning permissions and reviewed the decision to which he had been party in the Plymouth case. He observed as follows:
“15. Buying and selling planning permissions
This reluctance of the English courts to enter into questions of planning judgment means that they cannot intervene in cases in which there is sufficient connection between the development and a planning obligation to make it a material consideration but the obligation appears disproportionate to the external costs of the development. Reg. v. Plymouth City Council, Ex parte Plymouth and South Devon Co-operative Society Ltd., 67 P. & C.R. 78 , was such a case, leading to concern among academic writers and Steyn L.J. in the present case that the court was condoning the sale of planning permissions to the highest bidder. My Lords, to describe a planning decision as a bargain and sale is a vivid metaphor. But I venture to suggest that such a metaphor (and I could myself have used the more emotive term “auction” rather than “competition” to describe the process of decision-making process in the Plymouth case) is an uncertain guide to the legality of a grant or refusal of planning permission. It is easy enough to apply in a clear case in which the planning authority has demanded or taken account of benefits which are quite unconnected with the proposed development. But in such a case the phrase merely adds colour to the statutory duty to have regard only to material considerations. In cases in which there is a sufficient connection, the application of the metaphor or its relevance to the legality of the planning decision may be highly debatable. I have already explained how in a case of competition such as the Plymouth case, in which it is contemplated that the grant of permission to one developer will be a reason for refusing it to another, it may be perfectly rational to choose the proposal which offers the greatest public benefit in terms of both the development itself and related external benefits. Or take the present case, which is in some respects the converse of the Plymouth case. Tarmac say that Tesco’s offer to pay £6.6m. to build the West End Link was a blatant attempt to buy the planning permission. Although it is true that Witney Bridge is a notorious bottleneck and the town very congested, the construction of a superstore would make the congestion only marginally worse than if the site had been developed under its existing permission for offices. Therefore an offer to pay for
the whole road was wholly disproportionate and it would be quite unfair if Tarmac was disadvantaged because it was unwilling to match this offer. The Secretary of State in substance accepted this argument. His policy, even in cases of competition for a site, is obviously defensible on the ground that although it may not maximise the benefit for Witney, it does produce fairness between developers.
Tesco, on the other hand, say that nothing was further from their minds than to try to buy the planning permission. They made the offer because the local planning authority had said that in its view, no superstore should be allowed unless the West End Link was built. Tesco say that this seemed a sensible attitude because although it was true that the development would add only marginally to the congestion which would have existed if offices had been built, this was an unrealistic comparison. In practice it was most unlikely that anyone would build offices in that part of Witney in the foreseeable future. The fact was that the development would make the existing traffic problems a good deal worse. In an ideal world it would have been fairer if the highway authority had paid for most of the road and Tesco only for a proportion which reflected the benefit to its development. But the highway authority had made it clear that it had no money for the West End Link. So there was no point in Tesco offering anything less than the whole cost. Why should this be regarded as an improper attempt to buy the planning permission? The result of the Secretary of State’s decision is that Witney will still get a superstore but no relief road. Why should that be in the public interest?
I think that Tesco’s argument is also a perfectly respectable one. But the choice between a policy which emphasises the presumption in favour of development and fairness between developers, such as guided the Secretary of State in this case, and a policy of attempting to obtain the maximum legitimate public benefit, which was pursued by the local planning authority in the Plymouth case, lies within the area of discretion which Parliament has entrusted to planning authorities. It is not a choice which should be imposed upon them by the courts.
I would therefore reject Mr. Lockhart-Mummery’s submission that Tesco’s offer was not a material consideration. I think that it was open to the Secretary of State to have taken the same view as the Plymouth City Council did in the Plymouth case, 67 P. & C.R. 78 , and given the planning permission to Tesco on the grounds that its proposals offered the greater public benefit. But the Secretary of State did not do so. Instead, he applied the policy of Circular 16/91 and decided to attribute little or no weight to the offer. And so, on the ground that its site was marginally more suitable, Tarmac got the permission.”
36. The Supreme Court reviewed all of these authorities and considered similar issues in the sphere of compulsory purchase in the case of R (Sainsbury’s Supermarkets LTD) v Wolverhampton City Council (2011) 1 AC 437. This case concerned the local planning authority’s decision to compulsorily purchase a site for a supermarket which was mainly owned by Sainsbury and, as to a small part, owned by Tesco (site A). Tesco also owned another site (site B) which was situated 850 metres away from site A and which contained a number of listed buildings which the local planning authority wished to see redeveloped and regenerated. Tesco had concluded that it was not financially viable to develop site B on its own but they offered to do so if they could cross subsidise it by developing site A. Thus the local planning authority proposed the CPO of site A so as to facilitate this scheme and in proposing the CPO took into account as a material consideration the commitment which had been made by Tesco to redevelop site B. The Supreme Court concluded that Tesco’s commitment to redevelop site B was not a material consideration which the local planning authority could have lawfully taken into account in deciding to make the CPO. Lord Collins JSC summarised the relevant legal principles in the following way:
“70 What can be derived from the decisions in the planning context, and in particular the Tesco case, can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision-maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. These principles provide the answer to the questions raised in Ex p Monahan [1990] 1 QB 87 about the development
in Victoria or the swimming pool on the other side of the city. They do not, as Kerr LJ thought, raise questions of fact and degree. There must be a real connection between the benefits and the development.
71 Given the similar context, there is no reason why similar principles should not apply to compulsory acquisition for development purposes provided that it is recognised that, because of the serious invasion of proprietary rights involved in compulsory acquisition, a strict approach to the application of these principles is required. There must be a real, rather than a fanciful or remote, connection between the off-site benefits and the development for which the compulsory acquisition is made.”
37. Having traced the evolution of this area of law up to its distillation into the four principles which were identified by Lord Collins in paragraph 70 it is important to focus in particular on the legal test in relation to off-site benefits. It will be apparent from paragraph 70 that off-site benefits are the subject of a particular treatment no doubt because they are not directly part of the development itself. It is clear from the decision of the Supreme Court in Sainsbury’s that off-site benefits will only be material where they are related to or connected with the development. As Lord Collins observed this is not a question of fact and degree. It is a legal requirement that there is a real, as opposed to fanciful or remote, connection between the suggested off-site benefits and the development. It is this principle that is particularly in play in the contentions raised under Ground 1.
38. A recent case engaging some aspects of the legal principles which have been set out above is the decision in Welcome Break Group Limited v Stroud District Council [2012] EWHC 140. In this case the claimant challenged the decision of the defendant to grant planning permission on the basis that within the S106 obligation there was a requirement that a proportion of the food that
was to be served at the motorway service area which had been granted planning permission should be sourced locally. The contention which was made was that the obligation failed to comply with Regulation 122(2) of the Community Infrastructure Regulations 2010 and was therefore not a legitimate matter that could be taken into account in the grant of planning permission. In rejecting that contention Bean J (as he then was) concluded as follows:
“50… An offered planning obligation which has nothing to do with the proposed development apart from the fact that it is offered by the developer is plainly not a material consideration and can only be regarded as an attempt to buy planning permission. However, if it has some connection with the proposed development which is more than de minimis then regard must be had to it. The extent, if any, to which it affects the decision is a matter entirely within the discretion of the decision-maker.
51 Mr Price Lewis submits that “the requirements to ensure that local produce and local employment opportunities are provided for are not matters which satisfy a policy that must be complied with in order to enable the development to proceed”. But it is not for me to say whether they are necessary to make the development acceptable. Subject to the requirement that they must be “directly related” to the development, which is the next point, that decision was for the committee.
52 On the “directly related” issue Mr Price Lewis prays in aid a paragraph in Circular 05/05 which provides:
“Obligations must also be so directly related to proposed developments that the development ought not to be permitted without them – for example, there should be a functional or geographical link between the development and the item being provided as part of the developer’s contribution.”
53 I accept the submissions of Mr Choongh and Mr Kingston that the planning obligations relating to local food sourcing and local employment are directly related to the development and fairly and reasonably related to it in scale and in kind. The planning statement submitted with the application referred to paragraph 158 of Circular 01/2008 (see above) and Regional Planning Policy EC1 which deals with support for the sustainable development of the regional economy. The Committee were correctly advised that certain other proposed section 106 obligations, for royalty payments and an ethical
food sourcing policy were not in accordance with the requirements for section 106 agreements; these were duly removed. The Council’s solicitor correctly explained the appropriate tests to the Committee in the course of the debate. The reference to a “functional or geographical link” in Circular 05/05 is not a statutory test; but, even if it were, I consider that it is plainly met in the present case.”
39. It is important to observe in relation to that case that Bean J did not refer to the decision of the Supreme Court in the case of Sainsbury’s, and also that the case only very indirectly and tangentially related to off-site benefits. Both the provisions in relation to local employment and the sale of locally sourced food related to the operation of the development itself which was being granted planning permission.
40. Section 2 of the Co-operative and Community Benefit Societies Act 2014 creates the opportunity to register under that Act a community benefit society. Section 2(2) identifies as the condition for registration of a community benefit society that it shows to the satisfaction of the Financial Conduct Authority that “the business of the society is being, or intended to be, conducted for the benefit of the community”. The purpose of condition 28 was to require the carrying out of the development by this form of legal entity.
Policy and Guidance
41. National Planning Policy is to be found in the National Planning Policy Framework (“the Framework”). The Framework provides the following policies which were relied upon in particular by the defendant and the interested party in relation to both the promotion of thriving communities and also the role of community-led initiatives in respect of renewable energy:
“17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should:
●be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area. Plans should be kept up‑to‑date, and be based on joint working and co‑operation to address larger than local issues. They should provide a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency;
●not simply be about scrutiny, but instead be a creative exercise in finding ways to enhance and improve the places in which people live their lives;
●proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs. Every effort should be made objectively to identify and then meet the housing, business and other development needs of an area, and respond positively to wider opportunities for growth. Plans should take account of market signals, such as land prices and housing affordability, and set out a clear strategy for allocating sufficient land which is suitable for development in their area, taking account of the needs of the residential and business communities;

● take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it;
● support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change, and encourage the reuse of existing resources, including conversion of existing buildings, and encourage the use of renewable resources (for example, by the development of renewable energy);…
97. 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 law 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…”
42. It will be apparent from what is set out above that not long prior to the determination of this application there had been a Written Statement by the Secretary of State for Communities and Local Government in relation to the approach which should be taken to wind energy development. The relevant parts of that Written Statement provided as follows:
“When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:
· the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and
· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.
Where a valid planning application for a wind energy development has already been submitted to a local planning
authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.”
43. National Planning Policy is supported by the Planning Practice Guidance. That also contains within it guidance in relation to the approach to be taken to community-led renewable energy which builds upon what is said in paragraph 97 of the Framework. It provides as follows:
“Paragraph: 004 Reference ID: 5-004-20140306
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.”
44. In October 2014 the Department of Energy and Climate Change published a document entitled “Community Benefits From Onshore Wind Developments: Best Practice Guidance For England”. The introduction to that document describes community benefits in the following terms:
“What are community benefits?
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.
Guidance on shared ownership schemes is being produced by the Shared Ownership Taskforce.”
45. The document goes on to explain its purpose and its relationship to the planning system as follows:
“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 generally not be taken into account by local planning authorities when deciding the outcome of a planning application for a wind development…
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.”
46. Later on in the document further advice and guidance is provided in relation to community benefits and the planning system in the following terms:
“Community benefits and the planning system
The primary role of the local planning authority in relation to community benefits is to support the sustainable development of communities within their jurisdiction and to ensure that community benefits negotiations do not unduly influence the determination of the planning application.
There is a strict principle in the English planning system that a planning proposal should be determined based on planning issues, as defined in law. Planning legislation prevents local planning authorities from specifically seeking developer contributions where they are not considered necessary to make the development acceptable in planning terms. Within this context, community benefits are not seen as relevant to deciding whether a development is granted planning permission.
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 states that “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.”
Actions necessary for the development to go ahead will be determined by the local planning authority and may relate to the provision of additional infrastructure, for example road widening to enable the turbines to get to site, or counteracting direct losses of amenity or habitat. A local planning authority
can seek these contributions, either in-kind or as a payment towards the cost, as part of the planning permission.
Local authorities can still play a very important role in facilitating and discussing community benefits, provided they ensure these discussions do not unduly influence the planning decision.”
Conclusions
47. In relation to Ground 1, the starting point must be an understanding of the nature of the local community donation (also sometimes described as the Community Fund) which accompanied the application. That understanding has to be derived from the application documents which were before the defendant and which are set above. The documentation described the local community donation as the provision of 4% of the turnover from the wind turbine to be devoted to helping “current and future community needs” and “build Community Resilience in the locality”. The application drew on the experience of the project at St Briavels which the documentation noted “has funded a number of projects of local community benefit, as selected by an advisory panel of local people.” In their letter of 10th July 2015, responding to the first Officer’s report the interested party stated this in relation to the community donation:
“The community donations will provide a sustainable and regular source of funding for 25 years to enable the community to build resilience by addressing local needs and community challenges both immediate and long term. This may include a range of initiatives such as supporting energy saving measures, other projects delivering environmental benefits, direct contributions for existing services or community facilities or funding to help realise new projects of community benefit. As a direct donation, the turbine community funds may also help to leverage additional support for host communities by providing match funding for other funding bids.”
48. Based upon this material it is clear that the local community donation involves the provision of a significant sum of money derived from the operation of the development. It is intended that it will be locally administered by members of the community and that the money will be devoted to projects, activities or initiatives from which the local community will derive benefit. What is equally clear is that there are no particular community benefits which are identified to which the donation would be applied. It could be used for anything, provided that it benefitted the local community in some way. Beyond being of some benefit to the local community, as recognised or defined by the local people administering the fund, there is no limitation on how the money might be used.
49. Having identified the nature of the community donation it is perhaps instructive to consider some of its particular features. Firstly, it is a purely financial contribution which does not in any way regulate how the development might operate. Secondly, it is an off-site financial contribution. Thirdly, it is not an off-site contribution which is designed to ameliorate or address some impact on social or physical infrastructure in the way that for instance a housing proposal would be required to make a financial contribution to provide additional educational infrastructure caused by the additional school pupils generated by the development. Nor is it, like the contribution enabling the release of employment land in the Plymouth case, designed to address some adverse land use consequence of the grant of permission (in that case the loss of the site for employment use).
50. Before embarking on the legal questions which arise it is appropriate to consider whether this understanding of the community donation is in any way affected by the additional material which has been referred to above which was not directly before the defendant. Mr Martin Kingston QC, who appeared on behalf of the interested party, placed particular emphasis on the use of a Community Benefit Society to deliver the development, and the evidence from Mr Clarke as to the objects of that organisation. Those objects, he contended, would, firstly, ensure that the benefits to the community from the project would be legally guaranteed and realised. Secondly, he submitted that the objects would ensure that the monies would only be spent on matters relevant to land use planning. I am unconvinced that these submissions in any way alter how the nature of the community donation is to be understood as set out above. If it is assumed for the sake of the argument that the use of the Community Benefit Society vehicle, whose objects would have to be approved by the Financial Conduct Authority, could ensure that in practice the business of the developer and in its turn the administration of the community donation were only spent on community benefits the fact remains that the purposes of the Society would be extremely wide ranging. The purpose described of “generating income for, and/or to be able to provide grants to one or more Community Organisations, Persons and/or businesses within the community served by the society” (see paragraph 10(b) of Mr Clarke’s witness statement quoted above) would enable payment of the money to any individual, organisation or business in the community for any project, activity or initiative considered to be of community benefit. Turning to the second point raised, there is nothing in the definition which ties the use of the donation to land use
purposes with a real connection to the development proposed, subject to consideration of the arguments raised in relation to planning policy in the Framework and elsewhere which are addressed below.
51. The other element of the evidence which was not before the defendant was the detail submitted by the claimant in relation to the way in which the equivalent community donation had been spent in St Briavels. Mr Cameron contended that this evidence demonstrated by way of example that it could not be said that the ways in which the community donation could be used were either for a planning purpose or fairly and reasonably related to the proposed development. For instance, maintaining defibrillators, providing the play group with waterproof clothing and supporting a lunch club for senior citizens, whilst entirely laudable in their own right, had nothing to do with land use planning and were not fairly and reasonably related to the provision of a wind turbine. Mr Paul Cairnes QC who appeared on behalf of the defendant and Mr Kingston responded to these submissions by contending that the boundaries of materiality in this context were extremely broad. Furthermore, they both drew attention to the passages from the Framework at paragraphs 17 and 97 set out above and contended community benefits of the kind generated by the community donation fell fully within the references to supporting “local strategies to improve health, social and cultural wellbeing for all”, and delivering “sufficient community and cultural facilities and services to meet local needs” as well as supporting “community-led initiatives for renewable and low carbon energy”. These submissions were bolstered by cross-reference to the Ministerial Statement and the PPG. Mr Kingston contended that the list
of items on which the St Briavels community donation had been spent were all, within a broad view of matters, supported by this policy material.
52. I did not find these submissions convincing. The starting point must be, as Mr Kingston rightly accepted, that policy cannot make a consideration material if as a matter of law it is not. The consideration must pass the legal tests set out above before it can legitimately be taken into account by the decision-maker. When the policy refers therefore, for instance, to taking account of local strategies to improve health, social and cultural well-being it intends that that should be done in the context of the lawful regulation of land use. It does not mean that any matter or proposal touching on issues of health and social and cultural well-being will inevitably be a material consideration in development control or forward planning. Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination. It must pass the Newbury test and be for a planning purpose and be fairly and reasonably related to the development proposed. It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine. The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development.
53. Mr Kingston contended that this approach misunderstands the community-led nature of the development proposed. This proposal, he contends, as described in the documentation is not a commercial development but has at its heart that it is a community-led initiative. The community donation is part and parcel of that community-led approach which is fostered by both the Framework, the PPG and the Ministerial Statement and it cannot be isolated from the development as the claimant’s submissions seek to. In a related submission Mr Kingston contended that it is important to examine not the money comprised in the community donation itself but what that money represents, namely the benefits which are the fruit of the community leading the way in making provision for its energy needs through a renewable, low carbon solution.
54. I am unable to accept that the fact that the proposal is community-led precludes or renders unnecessary an examination of the contributions associated with it to see whether or not they satisfy the legal requirements of being a material consideration in the planning decision. There is no doubt that support for a development, like opposition, is capable of being a material consideration in the planning process when it is based on valid planning considerations. That is no doubt the basis of the policy material relied upon in this respect by the defendant and the interested party. However, I have no doubt that it is still incumbent upon the decision-maker to scrutinise all elements of the development proposed and its package of benefits to establish in relation to each of them that they pass the legal test of properly amounting to a material consideration. There could be no credible suggestion that the community donation is part of a composite development of the kind engaged
by the third of Lord Collins’ principles in paragraph 70 of his judgment, namely what is commonly referred to as an enabling development.
55. In applying the relevant legal tests for materiality derived from the review of the authorities set out above it is, of course, important to bear in mind that it is no part of the test to consider whether the contribution is necessary or required. Such an additional gloss was specifically rejected in both the Plymouth and the Tesco Stores cases. In my view it is clear that in applying the test from Newbury the community donation neither serves a planning purpose nor does it fairly and reasonably relate to the development proposed. It is irrelevant to the issues engaged by the exercise of land use planning or development control in determining the interested party’s application. It is important to appreciate the essentially open-ended nature of the purposes to which the community donation could be applied: the sole constraint is that the purpose of any grant is for some form of community benefit as determined by those appointed from the community to administer the fund. The community donation is self-evidently not an on-site feature of the development designed to make it more attractive such as the bird hide and public art of the Sainsbury’s proposal in Plymouth. Nor is it a constraint on the operation of the development itself imposed for a planning purpose like the obligation relating to local food sourcing and local employment of the kind addressed in the Welcome Break case. Nor is it an off-site contribution related to a planning impact off-site like the contributions to address the impact of the proposal in the Plymouth case on the extent of industrial land available in the city. The community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose.
56. Applying the principles and conclusions reached by Lord Collins in the Sainsbury’s case it is important to observe firstly, as set out above, this is an off-site contribution and therefore engages the fourth of the principles he sets out in paragraph 70 of that decision. As such it is essential for the off-site benefits to have a real and not a remote or fanciful connection with the development. For the reasons set out above there is no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit.
57. Reliance was placed by the defendant and the interested party on the Inspector’s decision in the Alvington appeal as supporting their contention that the local community donation was a material consideration in the application. They submitted that the Inspector endorsed the materiality of the local community donation in his decision to grant planning permission in that appeal. In my view these submissions were of little value to the defendant and the interested party. Firstly, the question of whether the local community donation is a material consideration is a question of law for the court. Secondly, it is unclear from the Inspector’s decision at paragraph 32 whether he is directly referring to the local community donation and it certainly does not seem from his reasoning that the legality or materiality of the local community donation was a significant issue in the case before him. He deals globally with the socio-economic benefits in paragraph 34, and as the claimant accepted the other socio-economic benefits claimed were undoubtedly material considerations to be placed in the planning balance. Thus the
Inspector’s appeal decision at Alvington adds little if anything to the substance of the legal conclusions which the court needs to reach in this case.
58. Similarly the claimant’s reliance upon the observations of the author of the Planning Statement set out above, to the effect that the local community donation should not be given any weight, is of little moment in determining the legal issues that arise and which must be determined on the basis of the application of the legal principles that have been identified. The Guidance from the Department of Energy and Climate Change was also debated in the parties’ submissions. The claimant contended that the Guidance supported its position; the defendant and the interested party contended that it was irrelevant to the local community donation which was not addressed by the Guidance but was a separate initiative. Neither the Guidance nor these submissions could replace or override the application of the relevant legal principles from the authorities, and they are of little if any help in resolving the issues in this case.
59. I am satisfied for the reasons set out above that the claimant’s submissions are correct and that the defendant was not entitled to take into account as a material consideration in their planning decision the offer of the local community donation made by the interested party as part of their proposal. As a consequence the decision which they reached was unlawful. I have been invited by the defendant and the interested party to refuse relief in the exercise of my discretion under s31(2A) of the Senior Courts Act 1981 on the basis that the outcome of the decision would not have been substantially different if the error which I have identified by the defendant had not been made. I am unwilling to accede to this submission. It is clear from both the officer’s report
and also the members’ debate and voting that this was a balanced decision which could have been determined either way. It has not been necessary to rehearse for the purposes of the legal issues in the case the amenity objections which arose, and which the officers championed, as reasons for refusing the application. Those included both concerns relating to the impact on the historic environment and also landscape effects. I am not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted. In my view the appropriate outcome in this case is that the defendant’s decision should be quashed as a result of the claimant succeeding in relation to Ground 1.
60. In these circumstances it is unnecessary to address in detail the submissions which were made in Ground 2 in respect of imposition of condition 28, and I do not propose to do so. I would simply observe that the imposition of that condition was contended, at least in part, to be required by the need to secure the establishment of the local community donation. To that extent therefore the Grounds are interlinked. Nonetheless my conclusions in relation to Ground 1 are sufficient to dispose of the case.

Regards,
Greg_L-W.

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With an avg. 1.2M voters per MEP & Britain having only 8%, if united, say. The EUropean Parliament has no ability to make policy and has a Commission of unelected bureaucrats, thus clearly the EU is not even a pretence of being a democracy; yet The EU & many of its vassal States are willing to slaughter people in Sovereign States to impose The EU’s chosen brand of democracy on them!

The imposition of a Government and policies upon its vassal regions such as the peoples of Greece shows just how far from being a democracy the EU is.

There will be little or no change in Britain’s economic position, when we leave the EU, using a better negotiated & updated version of the ‘Norway Model’ as a stepping stone to becoming a full member of the Eropean Economic Area, where all will benefit, as we secure trade relations with the EU’s vassal regions, with an EFTA style status and can trade and negotiate independently on the global stage, as members of The Commonwealth and the Anglosphere.

One huge benefit will be that we can negotiate with bodies like the WTO, UN, WHO, IMF, CODEX and the like, directly in our own interest and that of our partners around the world in both the Commonwealth and the Anglosphere at large; rather than having negotiations and term imposed by unelected EU bureacrats and their ionterpretation of the rules handed down as if they were some great achievement by the EU.
The greatest change and benefit will be political, as we improve our democracy and self determination, with the ability to deselect and elect our own Government, with an improved Westminster structure, see >Harrogate Agenda<.
How we go about the process of disentangling our future wellbeing from the EU is laid out in extensive, well researched and immensely tedious detail see >FleXcit< or for a brief video summary CLICK HERE
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Peter Wright Announces His High Court Victory Against FoDDC.

Peter Wright Announces His High Court Victory &
Overturning Of FoDDC’s Wind Turbine Consent:

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09-Jun-2016
Peter Wright Announces His High Court Victory
&
Overturning Of FoDDC’s Wind Turbine Consent:

Dear All
In Molly’s absence abroad I wanted to share some very, very good news!
Earlier today Mr Justice Ian Dove passed Judgement in our favour in the Judicial Review. We have not yet received the formal Judgement ourselves but it is now public knowledge that he has agreed 100% with our Claim and has ordered that the Planning Consent for the Severndale Turbine by the FODDC should be quashed. Costs will also be awarded in our favour to be paid by the FODDC up to an amount to be agreed by the Judge but likely to be circa £35k.
I attach an extract from an independent Planning Bulletin that has been sent out following his decision which summarises matters as follows:-
 
“However, in upholding a local objector’s challenge to that decision, the court noted that it is fundamental that planning permissions are never for sale.
The fact that the scheme was community led did not excuse the local authority from carrying out a full examination of its planning merits.
 
The donations served no planning purpose and did not fairly and reasonably relate to the development itself, the judge ruled.
 
No particular community benefits had been identified to which the donations would be applied and the latter were thus irrelevant to the council’s determination of land use and development control issues. The planning permission was quashed.”
   
So we have won our case. It remains to be seen whether the FODDC will seek leave to appeal to the Courts of Appeal or whether Resilience and the Edwards will submit a new Planning Application afresh. But for tonight you may raise a glass to celebrate an historic victory for the true Local Community in Stroat and Tidenham.
Thank you all for your support over the past few months, we could not have done this without you.
With all best wishes
Peter Wright

Posted by: Greg Lance – Watkins (site owner)

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