Community benefits and shared ownership were specific topics included in my paper at the recent Scottish Renewables socio-economic benefits seminar.
Relevance to consent decisions
The recent Pines Burn planning appeal decision stated:
A shared ownership scheme and a community benefit fund are proposed, but these are not material considerations in the planning process.
The developer won the appeal, so might not be too disappointed to lose the argument about the relevance of the shared ownership scheme.
Material considerations
The law requires that planning applications be determined in accordance with the provisions of the development plan, unless "material considerations" indicate otherwise.
To be a relevant consideration, it must be a "material consideration". There is no statutory definition of "material considerations", although the courts have provided some guidance on a case-by-case basis.
The position with section 36 applications (50+MW) is slightly different: material considerations are relevant to the deemed planning permission application, but the remainder of the consent application has a wider scope.
I've done a separate blog on the general issue of socio-economic benefits as a material consideration.
Community benefit
The Scottish Government expects developers to continue to offer community benefit payments, which have been valued at £1 million per month in Scotland. However, they do not regard community benefit payments as a material consideration:
Community benefits are an opportunity for communities to share in the rewards from their local energy resource... the provision of which is a voluntary undertaking and is not a material consideration in the planning process
Shared ownership
Shared ownership is also a key part of the Scottish Government's policy: it's ambition is, by 2020, at least half of newly consented renewable energy projects will have an element of shared ownership. However, shared ownership is not seen as a material consideration, although any associated socio-economic benefits might be material:
The Chief Planner clarified, in 2015 that ownership itself is not a material consideration in determining the acceptability of development proposals in planning terms. However, this also clarified that the net economic impact, including the community socio-economic benefits such as employment, associated businesses and supply chain opportunities are relevant considerations and these are aspects that Ministers are keen to see strengthened in future projects.
Court decisions
The Supreme Court is due to review the relevance of community benefits, following a decision by the (English) Court of Appeal , describing the community benefits as:
an untargeted contribution of off-site community benefits which is not designed to address a planning purpose
The caselaw applied by the judges is ripe for review, having been developed in relation to infrastructure upgrades, which arose mainly from superstore developments in the mid-90s. It requires any benefit to serve a planning purpose and to have a connection with the proposed development.
In the case to be heard by the Supreme Court, the proposed turbine was to be erected and run by a community benefit society, with an annual donation to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years. Although that appears to be community benefit rather than shared ownership, it would be useful if the the Supreme Court took the opportunity to comment on the relevance of shared ownership proposals.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
