A community investment scheme proposed by the developer of 11 wind turbines in Cornwall could not be used as a reason to grant planning permission, Mrs Justice Lang held after upholding a decision by the Secretary of State who had dismissed the claimant’s planning appeal.
The site lay close to the Cornwall AONB and heritage coast and the local planning authority had refused permission in 2014 citing unacceptable impact on the landscape and to designated heritage assets. At appeal an inspector concluded that the public benefits of the scheme were extensive and very weighty, and the proposal had the potential to act as a model for other energy projects. Nonetheless, the harm to the setting of heritage assets and the wider landscape were significant and outweighed the benefits of the scheme. In so finding he rejected the appellant’s claim that a unilateral undertaking which proposed a suite of community benefits including a 20% reduction on electricity tariffs to local households, did not constitute a reason for granting permission within the Community Infrastructure Levy Regulations 2010. This conclusion was accepted by the Secretary of State.
In challenging the decision, the claimant asserted that the section 106 undertaking served a valid planning purpose since it further government policy which sought to encourage local community involvement in renewable energy schemes. It would provide a raft of local benefits which were directly related to this objective and was fairly and reasonably related in scale and kind to the scheme.
Mrs Justice Lang relying on the judgment in Forest of Dean District Council v Wright  held that a community benefit fund was not capable of being a material planning consideration. She also noted that the unilateral undertaking which envisaged the payment of the reduced electricity tariff, was discretionary and could be withdrawn at any stage by the developer. Eligibility criteria for the tariff reduction were not specified and overall the judge held that it was a nebulous proposal, comprising an inducement to make the scheme more attractive to local residents.
The court reached a similar conclusion in relation to the community investment scheme which was aimed at pooling any surplus revenue after the tariff reduction had been applied, and which would be spent on local projects. This too could be withdrawn at any time and given uncertainty about the commencement of the development and its long-term future, the connection was remote. Judge Lang held. It was not in the court’s view, necessary to make the scheme acceptable and the challenge was rejected on all grounds.
Good Energy Generation Ltd v Secretary of State for Communities and Local Government & Cornwall County Council & Communities Against Rural Exploitation
Date: 25th May 2018
 EWHC 1270 (admin)
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