Legal Appeal- Community Benefits and Planning

Please help us to pursue this Court of Appeal action to help clarify how Community Benefits can lawfully be considered in Community Energy planning decisions, as encouraged by National Planning Policy.

Permission to Appeal has now been granted to allow a challange to a High Court judgment which quashed planning permission for a community energy project (Resilient Energy Severndale); concluding that the council's decision was unlawful because it gave positive weight to the financial community benefits of the project, despite these being inherent to the project and despite relevant National Planning Policy encouraging such community projects and the formal recognition of their social, environmental and economic benefits.

A successful Appeal is key to the continued progress of this community energy project, but the outcome is also of greater significance since the present ruling provides legal uncertainty for any project where community benefits (social, environmental and economic) are an inherent component of the project and, therefore, a relevant planning consideration.

The 500kW community wind energy project, Resilient Energy Severndale, was approved by Forest of Dean District Council's planning committee in August 2015 with a majority vote of 10:3 in favour with one abstention. It was one of the first wind projects to receive planning approval following new planning guidance for wind energy issued in June 2015. In arriving at their decision, the council recognised the social, environmental and economic benefits the project would bring to the local area and communities, as well as the high level of local support.  The approval was conditioned to ensure that the project could only be developed via a Community Benefit Society established for the benefit of the local community. 

The central issue in this Appeal is an important point to be resolved in the public interest, namely whether or not Government Planning Policy encouraging positive consideration of community involvement in renewable energy is lawful.

Both we and our counsel believe that the Court's decision to uphold a Judicial Review challenge, by a single objector, was wrong to focus simply on the presence of a community fund; artificially disaggregating one inherent consequence of the fact that the proposal was community led (with a range of social, environmental and economic benefits for the community), and placing the wrong meaning on this single aspect in the council's decision making.

The ruling failed to recognise that this established communty energy model differed from a commercial development and, relying on commercial case law, it concluded that the proposed financial community benefits had no planning purpose.  As a result, the treatment of community benefits as a material consideration by the council in its balancing exercise (required as part of the decision-making process) was deemed unlawful. This conclusion alone supported quashing of the planning permission.

The Order allowing permission to Appeal accepts that this Appeal, and a similar action by the council, 'are sufficiently arguable to have a real prospect of success'. It additionally accepts that 'the potential implications of the judge's decision for relevant national planning policy can be said to give rise to a compelling reason for the appeal to be heard'.

Legal counsel have confirmed the case is an important milestone in UK Law as it involves some key important considerations:

1. A high level of local public support for the project.

2. A public ownership model as a Community Benefit Society.

3. All surplus from the operation of the project to be allocated to the local community to increase community resilience.

4. A recognition that it is the positive social, environmental and local economic benefits for the community arising fom the project that are important considerations, not simply the presence of a community fund.

5. Government policy that is ostensibly supportive of community energy projects.

One of the top barristers in planning and environmental law has agreed to represent the case, but as a community based enterprise with limited resources and significant expenditure already incurred, we cannot fund this battle alone.

We are, therefore, seeking support from all of those who recognise the many benefits that community projects can deliver, not just here in the Forest of Dean and not just for renewable energy, but for all projects where community benefits are an inherent aspect from the outset.  Please join the positive Crowd striving for justice in this case and for future projects that seek to benefit local communities everywhere.

Once successfully over this hurdle the project intends to raise development funds via a community share offer, as for similar Resilient Energy projects to date.  It is the intention of the board of Resilient Energy Severndale that all contributions received towards legal costs will be repaid in full from the project funds raised at this stage (assuming the Appeal is won and the project proceeds). Alternatively contributors can opt to have their donations forwarded to our preferred charity www.10:10.org.