The Queen (on the application of Hampton Bishop Parish Council) (Claimant/Appellant) v Herefordshire Council Herefordshire Rugby Football Club and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Christopher Clarke |
| Judgment Date | 01 July 2014 |
| Neutral Citation | [2014] EWCA Civ 878 |
| Docket Number | Case No: C1/2014/0147 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2014 |
and
[2014] EWCA Civ 878
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Richards
and
Lord Justice Christopher Clarke
Case No: C1/2014/0147
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Hickinbottom
Royal Courts of Justice
Strand, London, WC2A 2LL
Sasha White QC and Andrew Byass (instructed by Clyde & Co LLP) for the Appellant
Richard Kimblin and Nina Pindham (instructed by Herefordshire Council Legal Services) for the Respondent
Ian Dove QC and Jack Smyth (instructed by Wragge & Co LLP) for the Interested Parties
Hearing date: 17 June 2014
The broad context of the present case was described in these terms by Hickinbottom J in the judgment under appeal:
"2. 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."
On 17 September 2012 Herefordshire Council ("the Council") granted outline planning permission to Hereford Rugby Club ("the Rugby Club") for the proposed development, briefly described as a "development of grass and all weather sports pitches, clubhouse, indoor training building, car parking and landscaping supported by enabling residential development of 190 units". The site is about 3 km from Hereford City Centre, on land to the east of Holywell Gutter Lane, Hampton Bishop, in an area for which Hampton Bishop Parish Council ("the Parish Council") is the parish council.
The Parish Council brought judicial review proceedings against the Council to challenge the grant of planning permission. The Rugby Club and Bloor Homes Limited, a construction company with a commercial interest in building the housing which forms part of the proposed development, took part in the proceedings as interested parties. In a judgment handed down following a rolled-up hearing, Hickinbottom J granted permission to apply for judicial review but dismissed the substantive claim.
The Parish Council now appeals against the judge's order. Permission to appeal was granted by Beatson LJ on limited grounds. In the result there are two issues before this court: (1) whether the Council failed to comply with the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to determine a planning application in accordance with the development plan unless material considerations indicate otherwise; and (2) whether the Council acted in breach of regulation 122 of the Community Infrastructure Levy Regulations 2010 ("the CIL Regulations") in taking into account as a material consideration a planning obligation entered into pursuant to section 106 of the Town and Country Planning Act 1990 ("the 1990 Act") to transfer the Rugby Club's existing ground to the Council for the nominal sum of £1 on completion of the move to the new site.
The facts
I propose to summarise the factual material in some detail because, as will appear in due course, it is central to the resolution of the issues.
The Rugby Club lodged its application for planning permission in November 2010. The application was supported by a planning statement and an environmental statement. It was based at that time on 250 enabling residential units. No reference was made to the Rugby Club's existing ground being transferred to the Council once the club had moved to the new site.
The application was the subject of major revisions in July 2011, including a reduction in the number of residential units from 250 to 190, 35% of which would be affordable housing. The revised proposal was supported by an addendum planning statement.
A lengthy planning officer's report ("the first report") was prepared for the purposes of a meeting of the Council's Planning Committee on 31 August 2011 at which the application was due to be considered.
Section 6 of the first report gave the officers' appraisal of the proposal. As part of that, it stated at paragraph 6.10 that the starting point for consideration of the development proposals was the adopted development plan, namely the Herefordshire Unitary Development Plan ("the UDP") and the Regional Spatial Strategy for the West Midlands. I can focus on the UDP since nothing turns on the provisions of the Regional Spatial Strategy.
Consideration was given first to the UDP policies in respect of housing:
"6.12 The UDP policies in general are aimed at strictly controlling new development outside of the defined settlements, the presumption being that such development should only be permitted in exceptional circumstances where specific criteria are met. In this instance, Policy H1 stipulates that any new housing within Hereford and the market towns should be restricted to within the defined settlement boundary whilst Policy H7 defines the criteria under which new housing can be permitted in open countryside. However, this policy is primarily geared towards smaller scale developments such as new farm workers dwellings or conversion of rural buildings rather than large scale residential developments such as this. The development is therefore contrary to the relevant housing policies within the UDP."
The report referred next to the UDP policies concerning sport and recreational facilities. It said that Policies RST1 and RST10, in particular, were relevant. Policy RST1 set criteria against which new sport and recreational development should be assessed, and confirmed that such development could be permitted in the countryside but only where the countryside was the primary resource for the proposal, which was not the case here. Policy RST10, however, allowed for major sports facilities on the edge of Hereford where they were meeting identified regional or sub-regional needs; it required such schemes to be acceptable in terms of their environmental impact and that they be located in a sustainable and accessible location; and it was also subject to the requirement that it be demonstrated that there were no suitable sites available within the urban area to accommodate development. Having examined the question of suitable alternative sites within and around the city, including the availability and viability of such alternatives, the report stated:
"6.24 The site lies in open countryside where the adopted UDP policies [seek] to control large scale new residential development and only permit large scale sports developments where a regional or sub-regional need is demonstrated. There are many sequentially preferable sites within and around the city that could accommodate either the development as a whole or the development in its disaggregated form but none of these sites would provide the required opportunity to develop the club's facilities due to their financial circumstances. This consideration should not override longstanding land use considerations. The principle of development is therefore contrary to adopted policy.
…
6.26 Section 38 of the Planning and Compulsory Purchase Order Act 2004 stipulates that all development should be considered in accordance with adopted policy unless material considerations indicate otherwise. This report will now consider the other planning considerations and whether they are sufficient to outweigh the normal policies which control new development in the open countryside."
Traffic, access and accessibility issues were examined and were considered acceptable. Examination of landscape and visual impacts, however, led to the conclusion at paragraph 6.56 that the development would be contrary to the requirements of Policy LA2 of the UDP (which provided that proposals for new development that would adversely affect either the overall character of the landscape or its key attributes or features would not be permitted). It is apparent from a later passage in the report that the development was also considered to be contrary on landscape grounds to Policy LA3 (which provided that development outside built up areas which was acceptable in terms of other UDP policies would only be permitted where it would not have an adverse effect upon the landscape setting of the settlement concerned) and to Policy S7 (which related to natural and historic heritage). Consideration was then given to a range of other matters, none of which was found to give rise to serious concerns, though it was noted that there would be an adverse impact on biodiversity at least in the short term (which, as appeared later, was considered to be contrary to Policy NC6). There was also a discussion of the proposed agreement under section 106 of the 1990 Act, which at that stage included no provision in respect of the...
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