When does a legitimate planning obligation which provides a benefit to the community cross the line such that it can then ‘be regarded only as an attempt to buy planning permissions’?
The recent High Court case of Wright v Forest of Dean Council considered that question in respect of a Community Benefit Fund to be provided as a result of the grant of planning permission for a wind turbine. The Community Benefit Fund was expected to provide around £15k to £20k each year for 25 years for “current and future community needs” and “build Community Resilience in the locality”. The question for the court was whether or not the Community Benefit Fund amounted to a material consideration, to which the Planning Committee could give weight.
The court considered the case of R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 in which Lord Collins observed “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” and “off-site benefits which are related to or are connected with the development will be material. …There must be a real connection between the benefits and the development.”
The fund was to be locally administered to project which would benefit the local community, but no particular community benefits were identified – it could be used for anything provided it benefitted the local community in some way.
Therefore Mr Justice Dove found that there was no real connection between the development of the wind turbine and the gift of monies. As such the Planning Committee was not entitled to take it into account as a material consideration in their planning decision and as a consequence the planning decision was unlawful.
Mr Justice Dove did not give any significant consideration of Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 which provides that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is: (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.
The lesson from this case is that either the obligations must be related to the proposed development, or no weight may be given to such obligations in the decision making process.
Another interesting aspect of this case was that it was crowdfunded – an increasingly common way of funding this form of litigation.
If you would like to discuss any of the issues raised in this article get in touch with our planning team enquiries@stephens-scown.co.uk or give us a call on 0345 450 5558.