Discussions between the Scottish Government and the renewables industry on shared ownership of onshore schemes continue. The latest court decision on the planning status of community benefits underlines one of the difficulties being debated – that under the current system there is no guarantee of shared ownership arrangements being counted in favour of a grant of permission.

The court’s decision in R (Wright) v Forest of Dean District Council restates the legal test for claimed development benefits to qualify as material planning considerations. The law remains unchanged. But the case illustrates the level of scrutiny to which benefits may be subjected, and the temptation for Councils to impose problematic conditions.

Material considerations must have a planning purpose and fairly and reasonably relate to the development. Application of that test in individual cases is not always straightforward.

In the Forest of Dean case, the developer described the project as a community focussed scheme which would be delivered by a Community Benefit Society (CBS). A community fund would secure a % of turnover to be spent on a wide range of community projects. (Under a similar project promoted by the developer, funds had been spent on play group equipment; a trip for senior citizens, and works to the local church).

In granting the application, the DC took account of the fund in supporting the overall case. A pre-commencement condition required evidence of the establishment of the CBS to be exhibited to the DC.

The court was clear that the socio-economic benefits accruing from the fund failed the test. There was no discernible planning purpose or link to the development. While the court did not rule on the validity of the condition, it hinted that it was similarly flawed. The relevance of the community vehicle used was not considered other than to the extent that it would establish the fund.

Clearly socio-economic benefits can be material considerations. While a “shared ownership” arrangement (in whatever form) is unlikely to amount to a material consideration in and of itself, benefits flowing from that arrangement may do. Equally, the payment of money by itself (in whatever form) is unlikely to be sufficient – certainly not without carefully considered constraints on how it is spent.

The SPP mentions jobs, business and supply chain opportunities. Where these flow from the shared ownership arrangement as distinct from the development itself, that may tick the box. Beyond that it seems that a developer may have the pain of the shared approach without any of the (planning) benefits.

Against this background developers should not be required to make such arrangements or be penalised (in planning terms) for failing to do so. If policy “encouragement” is to remain then a clear path should be laid out to enable participating developers to be credited for their efforts.