Wind farm community benefits ‘are not a material consideration’, guidance says …

wind-turbines17DECC have just published “Guidance of Community Benefits from Onshore Wind Developments“.  The paper provides some great examples of the way in which contributions from windfarm operators can help local communities.  It builds on the 2013 industry protocol that suggested a minimum annual payment of £5,000 per MW output.  The document notes that the scheme is voluntary and that the benefits should not generally be taken into account in deciding planning applications.  Is this advice right?

What is a material consideration is a matter for the Courts.  The Courts have always had a generous interpretation of material consideration, with the Witney case noting that a planning obligation need only have a “more than tenuous” link to a development to be material.  If a consequence of granting permission for a windfarm is that long term benefits will be provided for a local community, surely that is material?

There is then a separate question about what, if any, weight can be given to a material consideration.  In Plymouth the Courts were quite clear that the weight attached to a material consideration was a matter for the decision maker.  However, the main decisions relating to planning obligations were before the introduction of Regulation 122 of the CIL Regulations 2010 (as amended).  Regulation 122 says that a planning obligation should not be taken into account as a reason for approval unless it meets the statutory tests of necessity, direct relationship and reasonableness in scale.  Accordingly, a planning obligation or a condition securing benefits may well be a material consideration but probably cannot be a reason for approval unless it meets the relevant tests.  DECC appear to have muddied the water on this issue by suggesting that it cannot even be material.

If a planning authority has a policy that says that, without community benefits, windfarms will normally be refused permission then a community benefits obligation will overcome a potential reason for refusal and can probably be taken into account as a factor that removes the reason for refusal.  It is then a relevant and weighty material consideration.  The upshot is that if planning authorities want to secure windfarm benefits they should adopt policies that give a clear foundation for securing appropriate contributions and a sound basis for refusal in their absence.

Similarly, if local planning authorities want to secure infrastructure on large schemes and to avoid some of the perceived constraints of Regulations 122 and 123 then they should also put appropriate policies in place.

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Roy Pinnock

About Roy Pinnock

Roy is a partner in the Planning and Public Law team, bringing his experience of working on regeneration projects within local government and as a consultant to his legal practice.

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