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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hampton Bishop Parish Council, R (On the Application Of) v Herefordshire Council [2014] EWCA Civ 878 (01 July 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/878.html Cite as: [2014] EWCA Civ 878, [2015] 1 WLR 2367, [2015] WLR 2367 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Hickinbottom
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RICHARDS
and
LORD JUSTICE CHRISTOPHER CLARKE
____________________
| The Queen (on the application of Hampton Bishop Parish Council) |
Claimant/ Appellant |
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| - and - |
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| Herefordshire Council |
Defendant/Respondent |
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and |
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| (1) Herefordshire Rugby Football Club (2) Bloor Homes Limited |
Interested Parties |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
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Crown Copyright ©
Lord Justice Richards :
"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."
The facts
"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."
"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."
"7.14 At the heart of the NPPF is a general presumption in favour of sustainable development and applications for housing should be considered in this context. It has previously been accepted that the development can be regarded as sustainable in terms of its location, accessibility, design and construction standards to be achieved. However, this presumption does not override normal, site specific planning considerations and the need to comply with the relevant Unitary Development Plan policies where they are consistent with the NPPF. In this regard, the site remains contrary to policy H7 being located in the open countryside.
7.15 Whilst the additional documents such as the design code and ecological management plan do go some way to mitigating the negative impacts of the development, in your officer's opinion, the loss of orchard and adverse visual and landscape impact of the development cannot be fully mitigated and therefore the development remains in conflict with the UDP policies listed in 7.13 above [i.e. those identified in the first report] …."
"The site is within open countryside outside of the settlement boundary for Hereford as defined by the adopted Herefordshire Unitary Development Plan (UDP). The residential element of the development does not satisfy any of the exception criteria within policy H7 and the presumption against new housing development within the open countryside therefore applies. UDP policy RST10 only permits major sports facilities on the edge of Hereford where they are acceptable in terms of their environmental impact. It is considered the development will be visually intrusive, will result in the permanent loss of a significant area of orchard which is a Biodiversity Action Plan habitat, and will adversely erode the landscape character of the site and setting of the city. As such the development is contrary to policies S7, LA2, LA3, NC6, H7, and RST10 of the UDP. The requirements of the National Planning Policy Framework are not considered sufficient to outweigh the conflict with adopted policies."
"That he accepted that by approving the application the application would be considered as a departure from Policy H7 of the UDP, but that this was justified through the NPPF, through the provision of affordable housing and the lack of a five year housing land supply.
That the application conformed to the criteria as set out in policies LA2 and LA3 of the UDP as it would not adversely affect the landscape setting and character due to the comprehensive Ecological Management Plan and layout.
That in respect of policy RST10, the environmental impact was deemed as acceptable with any concerns outweighed by the provision of regional sporting facility on a suitable, viable and affordable site. This was reiterated through the withdrawal of an objection by Natural England.
That the proposed Ecological Management Plan and the withdrawal of Natural England's objection addressed Policies S7 and NC6.
That he adopted the reasoning on the other planning issues as set out in the report."
The motion was carried by 14 votes to 4.
i) Regard had been had to the requirements of section 6 of the NPPF and the need to consider housing applications in the context of a presumption in favour of sustainable development.
ii) The was a need for new sports facilities and there were no suitable sites within the urban area to accommodate the facilities. The environmental impact of the proposed facilities was acceptable, and the site was readily accessible by a choice of means of transport as required by Polices S8 and RST10. The community health and well-being benefits that the facilities would offer would meet the aims of section 8 of the NPPF.
iii) The visual and landscape impact of the development on the site and the setting of the city was acceptable in accordance with Policies S7, LA2 and LA3. The ecological management plan ensured that the development was also compliant with Policy NC6.
iv) The matters secured through the section 106 agreement, including the safeguarding of additional publicly owned sports and recreation facilities, were material considerations in favour of the development.
v) It had been determined that the development would not have any likely significant effect on the Special Area of Conservation, meeting the requirements of Policy S7 and the Habitats Regulations.
vi) In various other respects the proposal was considered to comply with UDP policies and the NPPF. Reference was made in particular to Policies T8, DR4, DR5 and DR7.
"In summary, the approval of the development is a departure from Herefordshire Unitary Development Plan Policy H7. However, having regard [to] the requirements of the National Planning Policy Framework and its presumption in favour of sustainable development, compliance with other Herefordshire Unitary Development Plan policies and particularly the creation of new sports facilities meeting an identified need, the delivery of additional housing and affordable housing in the context of current shortfall in the Council's deliverable housing land, the sustainability of the development and the sustainable location of the site, the provisions of the planning obligation and the acceptable environmental, landscape and biodiversity impact of the proposals, the development is considered acceptable."
The first issue: the application of section 38(6) of the 2004 Act
"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed those considerations and determined these matters he will require to form his opinion on the disposal of the application …."
"But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."
"Whilst of course they must (i) identify and engage with the relevant policies in the development plan, properly understood and considered as a whole and (ii) pay proper regard to the statutory priority given to the development plan, there is no legal or practical requirement for planning decision-makers specifically to determine whether a development proposal is or is not in accordance with the development plan."
"… it is a fundamental and long established principle of planning law that something identified as a 'material consideration' (such as the putative economic and environmental benefit in the present context) is conceptually distinct from considerations identified in the development plan and does not ceteris paribus carry the same weight as an aim or consideration identified in the development plan itself. It is, therefore, essential, both analytically and in policy terms, to separate objectives or considerations specifically set out in the development plan from something else than can count only as another 'material consideration'."
The second issue: the transfer of the Rugby Club's existing ground to the Council
"122(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.
(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is –
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.
(3) In this regulation –
'planning obligation' means a planning obligation under section 106 of TCPA 1990 and includes a proposed planning obligation …."
I have omitted the elaborate definition of "relevant determination". It is common ground that the decision to grant planning permission in this case was a relevant determination.
"An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development, which is not de minimis, then regard must be had to it."
A classic example of an offer that cannot properly be taken into account as a material consideration was given by Staughton LJ in R v Westminster Council, ex p. Monahan [1990] 1 QB 87, 122C, namely that of a developer who wishes to erect an office building at one end of the town and offers to build a swimming-pool at the other end, which Staughton LJ described as being little different from offering the planning authority a cheque so that it can build the swimming-pool for itself provided the developer has permission for his office development. In such a case, as Lord Collins of Mapesbury JSC indicated in R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20, [2011] 1 AC 437, paragraph 70, there is no real connection between the benefits and the development. In the same passage, however, Lord Collins made clear that off-site benefits which are related to or are connected with the development will be material.
"30. … In this case, the existing ground was of course some distance away from the Site, and the development of the existing ground formed no part of the planning application. However, the future use of that ground was nevertheless in play. Sport England had stressed the importance of the existing ground not being lost as a public amenity …, as had the Council's own Parks & Countryside Manager …. The whole purpose of the proposed development is to enable the Rugby Club to relocate to the new development, once complete. It will then have no need for its existing ground at all, and will vacate it. In those circumstances, it was perfectly proper for the Planning Committee to consider the future use of that land, as a material consideration for the proposed development. Placing the existing ground into the responsible ownership of a body which would be able to secure the continued use and operation of the ground as a public amenity, namely the Council, was in the public interest; and, on the unusual facts of this case, was clearly 'directly related' to the development."
Conclusion
Lord Justice Christopher Clarke :
The Chancellor of the High Court :