Hampton Bishop Parish Council, R (On the Application Of) v Herefordshire Council

Factual and Procedural Background

The case concerns a proposal by a regional amateur rugby club ("the Rugby Club") to relocate from its existing modest ground near a city centre ("the City") to a new out-of-city site with enhanced sports facilities. The development plan included nearly two hundred residential dwellings to financially enable the sports facilities, with 35% designated as affordable housing. The proposed site lies outside the development boundary in open countryside, including an area of orchards valued for local landscape quality.

In September 2012, the local authority ("the Council") granted outline planning permission for the development, which included sports pitches, clubhouse, indoor training building, car parking, landscaping, and 190 residential units. The Rugby Club’s existing ground was to be transferred to the Council for a nominal sum upon relocation.

The parish council for the area ("the Parish Council") challenged the Council’s grant of planning permission by bringing judicial review proceedings. The Rugby Club and a construction company with commercial interests ("Company B") participated as interested parties. The High Court judge granted permission to apply for judicial review but dismissed the substantive claim.

The Parish Council appealed against the judge's order with permission granted on limited grounds. The appeal raised two main issues: (1) whether the Council failed in its statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application in accordance with the development plan unless material considerations indicated otherwise; and (2) whether the Council breached regulation 122 of the Community Infrastructure Levy Regulations 2010 by taking into account a planning obligation to transfer the Rugby Club's existing ground to the Council as a material consideration.

Legal Issues Presented

1. Whether the Council complied with the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the planning application in accordance with the development plan unless material considerations indicated otherwise.
2. Whether the Council acted in breach of regulation 122 of the Community Infrastructure Levy Regulations 2010 by considering a planning obligation to transfer the Rugby Club's existing ground to the Council as a material consideration in granting planning permission.

Arguments of the Parties

Appellant's Arguments (Parish Council)

• The Council failed to properly apply the statutory duty under section 38(6) by not clearly distinguishing between development plan policies and other material considerations, resulting in confusion among Planning Committee members about the priority to be given to the development plan.
• The planning obligation to transfer the Rugby Club's existing ground to the Council was not "directly related to the development" as required by regulation 122, since the existing ground was several kilometres away, was not part of the development, and the transfer had no use restrictions or demonstrated necessity.
• The obligation was also argued not to be "necessary to make the development acceptable in planning terms" because officers did not advise members accordingly, and there was no evidence that members made such a determination.

Respondents' Arguments (Council and Interested Parties)

• The Council contended that the Planning Committee properly applied section 38(6), clearly identifying the development plan policies and material considerations, and gave appropriate statutory priority to the development plan.
• The transfer of the existing ground was directly related to the development because the Rugby Club would vacate the existing site as a direct consequence of the new development, and the transfer to the Council would safeguard its continued use as a public amenity.
• The obligation was necessary to make the development acceptable, as without the planning obligations the development would not have been acceptable in planning terms.
• No evidence suggested any improper or unlawful conduct regarding the timing or nature of the transfer obligation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework under section 38(6) of the Planning and Compulsory Purchase Act 2004, which mandates that planning decisions be made in accordance with the development plan unless material considerations indicate otherwise. The court emphasized the necessity for decision-makers to identify relevant development plan policies, interpret them properly, assess whether the proposal accords with the plan as a whole, and weigh all material considerations accordingly.

The court noted that the Planning Committee had before it detailed officer reports that clearly identified the development plan as the starting point, specifically referencing the Herefordshire Unitary Development Plan ("the UDP") and its policies. The reports explicitly stated that the development was contrary to key policies, especially Policy H7 concerning housing in open countryside, and that the development would be a departure from the development plan. The reports also considered other material considerations, including the National Planning Policy Framework ("the NPPF") and the Council's housing land supply shortfall, which weighed in favour of the development.

The Planning Committee's minutes and the summary reasons for granting permission confirmed that members understood the statutory priority of the development plan and recognized the departure from Policy H7. The committee balanced this departure against material considerations, including the NPPF presumption in favour of sustainable development and the benefits of the proposed sports facilities and affordable housing. The court rejected the appellant's submission that the committee was confused or failed to apply section 38(6) properly.

Regarding the transfer of the Rugby Club's existing ground to the Council, the court considered the requirements of regulation 122 of the Community Infrastructure Levy Regulations 2010. The regulation requires that a planning obligation must be necessary to make the development acceptable, directly related to the development, and fairly and reasonably related in scale and kind.

The court accepted the judge's reasoning that the transfer was directly related to the development because the Rugby Club would vacate the existing site as a direct consequence of the new development, and the transfer would help safeguard the continued use of the ground as a public amenity. The court found no evidence of improper conduct in the timing or nature of the obligation. It also concluded that the obligation was necessary to make the development acceptable, as the development would not have been acceptable without the agreed planning obligations.

Secondary arguments regarding the obligation’s compliance with other regulation 122 criteria were either not pursued or found to lack substance and were outside the scope of the permitted grounds of appeal.

Holding and Implications

The court DISMISSED THE APPEAL.

The decision confirms that local planning authorities must apply section 38(6) of the Planning and Compulsory Purchase Act 2004 by clearly identifying relevant development plan policies, assessing whether a proposal accords with the plan as a whole, and weighing material considerations properly. It affirms that a departure from the development plan must be justified by other material considerations, such as national policy frameworks and housing supply issues.

On the issue of planning obligations under regulation 122 of the Community Infrastructure Levy Regulations 2010, the ruling clarifies that obligations related to the consequences of a development, even if off-site, can be directly related and necessary to make the development acceptable if they serve to mitigate or manage land use consequences arising from the development.

No new precedent was set beyond the application of established principles, and the effect of the decision is that the planning permission granted by the Council remains valid and enforceable.