R Hampton Bishop Parish Council v Herefordshire Council Hereford Rugby Football Club and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 16 December 2013 |
| Neutral Citation | [2013] EWHC 3947 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2013 |
| Docket Number | Case No: CO/13366/2012 |
[2013] EWHC 3947 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/13366/2012
and
Sasha White QC and Andrew Byass (instructed by Clyde & Co LLP) for the Claimant
Richard Kimblin and Nina Pindham (instructed by Mike Jones, Herefordshire Council Legal Services) for the Defendant
Ian Dove QC and Jack Smyth (instructed by Wragge & Co LLP) for the First and Second Interested Parties
Introduction
This claim raises important issues relating to the principles of planning decision-making in the context of a development plan, and their application to modern-day circumstances in which proposals for development are often sophisticated and complex, in both commercial and planning terms.
It concerns Hereford Rugby Club's proposal to relocate from their current modest ground on the banks of the River Wye near Hereford City Centre, to an out-of-city ground with all the facilities required by a regional rugby club. The club is amateur, and has no significant funds; and so the proposed development includes nearly two hundred dwellings which will financially enable the new sports facilities to be built. Over half of the new houses will be open market; but 35% will be affordable, i.e. accommodation for households whose needs are not met by the market. On any view, the proposed development is substantial, occupying over 20 hectares. It is not only outside the development boundary for Hereford and in open countryside, it is in an area of orchards, which provide an important local landscape on a route into the city. Once the club has moved, it is proposed to give the old ground to the Council.
Even on those briefest of facts, it will be clear that the proposal gives rise to a number of conflicting public interests. It has also given rise to resolutely held opinions, both for and against the project.
In this claim, the Claimant seeks to quash the outline planning permission granted in relation to the project. The permission was granted on 17 September 2012 by the Defendant local planning authority ("the Council") to the First Interested Party Hereford Rugby Club ("the Rugby Club") for a development comprising grass and all-weather sports pitches, a clubhouse, an indoor training building, car parking and landscaping supported by enabling residential development of 190 units including 67 affordable dwellings, on land about 3km from Hereford City Centre to the east of Holywell Gutter Lane, in Hampton Bishop Parish ("the Site"). The Claimant is the Parish Council for the area in which the Site falls. The Second Interested Party ("Bloor") is a construction company with a commercial interest in building the housing which forms part of the proposed development.
Background
The Rugby Club was formed in 1870. Since then, it has moved grounds several times. In 1947, it purchased a ground in Rockfield Road, Hereford. In 1987, it moved, purchasing its current ground, Wyeside, on the north bank of the River Wye, in central Hereford ("the existing ground"). At that time, the club had two senior teams and a colts team. At Wyeside, it has two full-sized pitches, a smaller pitch for under-12 rugby, four changing rooms, a training area and a small club house; but it has managed to hire additional ground for pitches from the adjacent rowing club. The facilities at the existing ground are rudimentary. Furthermore, the ground is on the functional floodplain of the Wye, and so liable to regular flooding.
Over the last 30 years, rugby has grown in popularity in the area. By 2009, the Rugby Club fielded 18 teams, and its youth/junior membership alone had grown to 400. As a result of this growth and its restricted facilities, the club does not have sufficient pitches for all teams to play at home, the pitches it does have suffer from excessive wear and flooding in the winter, it has to hire expensive all-weather facilities for players to train, and there is evidence that it is losing players to other clubs with its youth/junior membership declining by a quarter. Additionally, the club has strong links with local schools and communities, and actively promotes sport and fitness activities at the ground, which has put a further burden on its facilities.
The Rugby Club devised a bold plan for restoring its position within its region. It did not have funds to build a new ground; and so, from 2005, it looked for a site on which it could construct those facilities, enabled and subsidised by residential development. It could not find any such place within the development boundary of the city, but it eventually identified the Site, currently agricultural land used in large part as a commercial apple orchard, which, it was led to believe, it could acquire for a nominal sum. It proposed to develop the Site with full rugby ground facilities exceeding the Rugby Football Union ("RFU") Model Venue 2 level, and 250 homes that would fully fund the development. The sports facilities were to include four rugby pitches (two floodlit), a further two junior pitches, a 3G all-weather training pitch (also floodlit), a clubhouse, a 400-seater stand, an indoor training facility and a 250-space car park. It was intended that a proportion of the housing would be affordable.
In January 2008, it requested an Environmental Impact Assessment ("EIA") screening opinion for the development. On 10 April 2008, the Council responded to the effect that, in their opinion, the development was an EIA development; and consequently the planning application would have to be accompanied by an Environmental Statement.
On 18 August 2010, Bloor entered into a conditional contract for the purchase of the Site.
On 19 November 2010, the Rugby Club made its application to the Council for planning permission (Application No S/ 10291/O). The application was supported by a Planning Statement and an Environmental Statement, both largely prepared by the Rugby Club's planning consultants, Foxley Tagg Planning Limited. The initial application was based on 250 enabling residential units. It did not contain any reference to the Rugby Club's existing ground being transferred to the Council.
The application was the subject of major revisions in July 2011, including a reduction in the number of residential units from 250 to 190 two-, three — and four-bedroom dwellings, 35% of which would be affordable; and the revised proposal was supported by an addendum to the Planning Statement, although no new Environmental Statement was lodged.
The application was opposed by, amongst others, the Claimant, in letters prepared by their planning consultants, Kemp & Kemp Property Consultants, dated 18 and 30 August 2011.
The application was to be determined by the Council's Planning Committee ("the Planning Committee"), who first considered it at a meeting on 31 August 2011 ("the First Meeting"). In the usual way, the meeting had the benefit of a report from the Council's planning officers ("the First Report"), which recommended refusal. I shall return to that report; but, briefly, it recommended refusal largely on landscape and ecology grounds which, it said, resulted in the development being contrary to a number of the policies in the development plan. The report did not refer to the transfer of the Rugby Club's existing ground; but an update by the officers, prepared after the First Report had been circulated but before the meeting itself, said that:
"The applicants have offered to gift their existing site to the Council for a £1".
At the 31 August 2011 meeting, despite the officers' recommendation, without making a formal determination, the Planning Committee resolved to approve the application, subject to four matters being resolved, namely (i) that no further representations were received raising new material planning considerations prior to the end of an extended consultation period; (ii) the resolution of an outstanding objection by Natural England; (iii) the resolution of other issues identified in the officer's report; and (iv) the completion of an agreement under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act"). In October 2011, the Claimant, through its consultants, put in further representations objecting to the application.
The application was considered at a second meeting of the Planning Committee on 27 June 2012 ("the Second Meeting"). That had the benefit of a further officers' report ("the Second Report"). The matters outstanding at the earlier meeting had been resolved; and the transfer of the existing ground to the Council at nominal cost upon completion of the new facilities had been agreed as a section 106 obligation (see Second Report, paragraph 7.10). I shall return to that report too; but, briefly, it again recommended refusal, the primary concern expressed being as to the landscape and visual impact, and the resulting departure from a number of the policies in the development plan.
However, at their meeting on 27 June 2012, the Planning Committee again rejected that recommendation; and resolved by 14 votes to four to grant permission. The section 106 agreement, securing financial contributions to the Council in excess of £6m, was completed on 17 September 2012; and planning permission was formally granted that day.
On 10 October 2012, the...
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