Good Energy Generation Ltd v Secretary of State for Communities And Local Government & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, the court must distinguish errors of law from challenges to planning judgment and the weight given to competing considerations. A planning obligation can support the grant of permission only if it satisfies regulation 122 of the Community Infrastructure Levy Regulations 2010: it must be necessary to make the development acceptable in planning terms, directly related to it, and fairly and reasonably related in scale and kind. Community benefits which are discretionary, uncertain, remote or intended merely to make a development more attractive need not be treated as material considerations. A decision letter must be read fairly and as a whole. Brief reasons are sufficient where the informed reader can understand the decision and the treatment of the principal controversial issues.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision dismissing its appeal against Cornwall Council’s refusal of planning permission for a wind farm of up to eleven turbines.

The Inspector and Secretary of State found substantial benefits from renewable energy but serious harm to designated heritage assets, the landscape, the Area of Outstanding Natural Beauty and Heritage Coast. They also declined to attach weight to a proposed community benefit fund, local electricity tariff and community investment scheme. The claimant challenged that approach and alleged that insufficient regard had been paid to the subsequently adopted Cornwall Local Plan and related planning guidance.

1. The claim was dismissed. The Secretary of State’s decision was within the statutory powers and disclosed no error of law.
2. The court’s role under section 288 of the Town and Country Planning Act 1990 is supervisory. The exercise of planning judgment and the weighing of material considerations belong to the decision-maker. The court should presume that an experienced Inspector and the Secretary of State understood the planning framework correctly, while retaining responsibility for resolving distinct questions of law.
3. The Inspector and Secretary of State were entitled to consider the community obligations together with regulation 122 of the Community Infrastructure Levy Regulations 2010. Regulation 122 imposed legal tests, not merely policy guidance. The obligation had to be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind.
4. The local tariff was discretionary, lacked firm eligibility criteria, could be withdrawn, and was funded through the proposed community benefit fund. It therefore lacked a real connection with the development and was not necessary to make it acceptable. The community investment scheme was similarly uncertain, lacking disclosed terms and capable of withdrawal. It was a potential investment opportunity rather than a community-led initiative and did not satisfy regulation 122.
5. The fact that a benefit furthered a planning policy did not make it a material planning consideration. Planning policy could not convert an otherwise immaterial matter into a material consideration.
6. The reasons challenge failed. The Inspector’s concise conclusion that no weight could be attached to the obligations was intelligible when read in context, particularly because the parties were informed about the obligations and the issue had not been treated as a principal issue at the inquiry.
7. The Secretary of State was entitled to conclude that the proposal conflicted with the relevant Cornwall Local Plan policies and saved Policy ENV1. He was not required to refer separately to every policy or to the supplementary planning document where the decision, read as a whole, showed that the relevant planning considerations had been addressed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The claim sought to quash the Secretary of State’s decision dated 26 July 2017 dismissing the claimant’s planning appeal.