Council Loses Appeal Over “Unlawful” Community Donation

The Court of Appeal has rejected appeals by a council and a wind turbine developer following the quashing of a planning permission as a result of the committee taking into account a proposed donation to the community.

The single issue for the Court of Appeal was whether, on an application for development proposed to be undertaken by a community benefit society, the proposed donation to the community of a proportion (4%) of the turnover over the turbine’s projected life of 25 years was a material consideration worth approximately £1m. The proposed donation was secured by way of condition and in reaching their decision the LPA expressly took into account the donation. 

A judicial review of the decision followed 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 the High Court, Dove J held that the donations did not meet the criteria for materiality in case law as they were not designed to ameliorate any kind of adverse impact of the development, but could be used for any purpose considered locally beneficial.

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,” he noted, adding that he was “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 … 

 I am satisfied…that the [LPA] 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.

The Court of Appeal rejected both the LPA and Applicant’s contention that the Judge had been wrong to quash the planning permission.

Hickinbottom LJ (with whom Davis LJ and McFarlane LJ agreed) said: 

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”  … 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”.

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.

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