QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Priory Courts, 33 Bull Street
B e f o r e :
| THE QUEEN on the application of
HAMPTON BISHOP PARISH COUNCIL
|- and -
|- and -
HEREFORD RUGBY FOOTBALL CLUB
BLOOR HOMES LIMITED
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
Hearing dates: 5-6 December 2013
Crown Copyright ©
Mr Justice Hickinbottom:
"The applicants have offered to gift their existing site to the Council for a £1".
The Claimant's Grounds of Challenge
Ground 1: Material Considerations: The Planning Committee erred in law in their approach to material considerations.
Ground 1A: The Committee erred in taking into account the transfer of the Rugby Club's existing ground to the Council, as it was not a material consideration because the existing ground had no relationship or connection with the proposed development.
Ground 1B: The Committee erred in taking into account the provision of housing as enabling development, which was again not a material consideration.
Grounds 1C: If it was lawful to take into account the enabling development, the Committee did not address their minds to its scope, i.e. to whether that amount of enabling development was required to meet the identified planning need.
Ground 2: The Development Plan: The Planning Committee erred in law in their application of the development plan.
Ground 2A: The Committee failed properly to consider, understand and apply various key policies in the development plan.
Ground 2B: The Committee failed to comply with their obligation 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 indicate otherwise, by failing to make any determination as to whether the proposed development was or was not in accordance with the development plan.
Ground 3: The Environmental Statement: The Planning Committee erred in proceeding on the basis that they had required environmental information about the proposed development, when they did not.
"Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:
(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:
"[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" (Oxton Farms v Selby District Council (18 April 1997) 1997 WL 1106106 ["Oxton Farms"], per Judge LJ as he then was).
(iii) In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, per Pill LJ).
Ground 1: Material Considerations
Ground 1A: Transfer of the Rugby Club's Existing Ground to the Council
"203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of… planning obligations….
204. Planning obligations should only be sought where they meet all the following tests:
- necessary to make the development acceptable in planning terms;
- directly related to the development; and
- fairly and reasonably related in scale and in kind to the development."
"A planning obligation may only constitute a reason for granting planning permission 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 in kind to the development."
"Planning obligation" is defined in terms of a section 106 obligation (regulation 122(3)).
i) The Council itself, through its Parks & Countryside Manager had indicated support for continued use as playing fields (First Report, paragraph 4.11).
ii) In any event, Policy RTS 4 in the UDP protected the existing ground as playing fields, and Sport England considered that that policy "should ensure sufficient protection for these playing fields" (First Report, paragraph 4.4).
iii) Crucially, the existing ground is on the functional floodplain, and therefore could not be used for higher value development in any event. That is made clear in the First Report at paragraph 6.7 to which I have just alluded (see paragraph 31 above), and which states:
"[The Rugby Club's] existing site has no development value (other than for sports usage) due to its location within a functional flood plain".
That no doubt explains why there is no evidence of the Rugby Club raising or even considering the reservation of part of any uplift on redevelopment; and why the financial benefit to the Council of the transfer appears to have been stated to be limited, apparently being found within the £190,000 section 106 financial contribution allocated to "play, sport and recreation" (Second Report, paragraph 7.10). In commercial and planning terms, this was not "potentially valuable land"; and on no sensible view could this be described as the Rugby Club "buying" planning permission.
Ground 1B: Provision of Enabling Housing
"There is no planning policy guidance or support at either local level or national level for this format of application associated with sport and recreational facilities… as such there is no planning support for this format of application proposed, although this factor in itself is not a reason to resist development". (emphasis added).
"Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise."
"It seems to me to be quite beyond doubt [but] that the fact that the finances made available from the commercial development would enable the improvements to be carried out was capable of being a material consideration, that is to say, that it was a consideration which related to the use or development of the land, that it related to a planning purpose and to the character of the use of the land, namely the improvements to the Royal Opera House which I have already described, particularly as the proposed commercial development was on the same site as the Royal Opera House and as the commercial development and the proposed improvements to the Royal Opera House all formed part of one proposal."
"What can be derived from the decisions in the planning context… can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision-maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material…".
Ground 1C: The Scope of the Enabling Development
"8.17 The RFU considers [the Rugby Club] as an RFU Model Venue 2 club, however the current facilities provided at the Wyeside ground "are significantly beneath those needed by a Club at this level". Appendix 2 includes details of the facilities required to achieve a RFU Model Venue 2 and a RFU Model Venue 3, with these compared against the proposed scheme.
8.18 The proposed Rugby Club development provides playing areas and facilities so as to create a venue which includes many elements of an RFU Model Venue 3 so as to ensure that the Club have sufficient scope to handle future growth in support and participation. It would be costly, disruptive and unsustainable to develop a Model Venue 2 facility and then upgrade it in future to a Model Venue 3."
Ground 2: The Development Plan
The Statutory Background
"… [The local planning] authority shall have regard to the provisions of the development plan, so far as material to the application, and any other material considerations".
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"… [T]he development plan is
(a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and
(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and
(c) the neighbourhood development plans which have been made in relation to that area."
The Relevant Planning Policies
"The [UDP] will promote development and land use change which in terms of its level, location, form and design contributes to the achievement of sustainable development. This means avoiding or minimising adverse effects on the environment whilst providing necessary dwellings and employment together with appropriate infrastructure, services, transport and amenities."
It goes on to say that sustainable development will be promoted by, amongst other things, protecting and enhancing the natural environment, respecting patterns of local distinctiveness and landscape character in both town and country, and safeguarding landscape quality and visual amenity.
"Given inevitable development pressures, particular attention is given to the landscape setting of Hereford… and to the role played by green corridors into development areas."
"Proposals for new development that would adversely affect either the overall character of the landscape…or its key attributes or features, will not be permitted…"
It is to be noted that Policy LA2 is broad-looking, being concerned with "the overall character of the landscape". The notes, at paragraph 9.4.10, add this:
"Plan policy LA2… seeks to retain and enhance landscape character and to minimise the impact of landscape change, particularly that arising from new development. The intention is not to prevent necessary development, but to ensure that development respects landscape character."
"Development outside the built up areas of Hereford, the market towns and rural settlements, which is acceptable in terms of other [UDP] policies, will only be permitted where it would not have an adverse effect upon the landscape setting of the settlement concerned…"
Again, this is broad-looking, being concerned with developments which have an adverse effect on the landscape setting of the relevant settlement.
"Outside the settlements identified in the above policies and in the wider countryside it is important that residential development is strictly controlled in order to protect the landscape and wider environment…".
This reflects RSS Policy CF2 which provides that, with regard to new housing, priority will be given to the re-use of previously developed land and buildings within existing settlements.
"The provision of housing in Hereford…will be restricted to within the defined settlement boundaries…"
The notes at paragraph 5.4.2 expand on this:
"The boundaries of Hereford…are shown on the proposals map. The boundaries define the extent of existing urban land uses and also take into account the proposals of this Plan. Outside these boundaries land is considered in policy terms as countryside. Generally such land is in agricultural use. Policy E15, in protecting green field land, gives priority to the use of previously developed sites and to land within the boundaries of existing urban areas. … [T]he boundaries generally mark a well defined urban edge, the extension or encroachment of which into the open countryside will not usually be necessary. Exceptionally, development outside and adjacent to these boundaries, may be considered, in the following circumstances: for recreational or educational purposes where land within the urban area cannot be found…".
"Proposals for housing development outside Hereford, the market towns, the main villages and smaller settlements will not be permitted unless…";
there then follows a list of exceptions, none of which is applicable in this case.
"… [R]ecreation… development in the countryside can damage its character or appearance if care is not taken in respect of scale, siting or design."
"Proposals for development of new recreational, sport or tourist facilities… will be permitted where the proposal:
1. is appropriate to the needs of the community which it serves, having particular regard to the nature of the use, mode of operation, scale and design;
2. would not harm the amenity of nearby residents;
3. respects environmental character and resources, including designated landscape, historic heritage, archaeology, biodiversity, and geological features and rights of way; and
4. is wherever possible accessible by a choice of modes of transport, with priority given to public transport, walking and cycling, and is designed to ensure access for all.
Proposals in the open countryside will only be permitted where the countryside is the primary resource for the proposal and the rural landscape and environment is sustained. In such instances new buildings will only be permitted where there are no suitable existing buildings capable of conversion, they are of a small scale and are ancillary to the primary proposal."
"Proposals for new major sports facilities, meeting identified regional or sub-regional needs, will only be permitted on the edge of Hereford… where it can be demonstrated that no suitable site is available within the … urban area. Proposals for major facilities away from urban areas will not be permitted unless there is a demonstrable requirement for the use to be established in a specific location.
Proposals for all such facilities will need to demonstrate that they are acceptable in terms of their environmental impact and are located in order to maximise accessibility to the public by a choice of modes of transport."
"10.5.45 …[T]here may be requirements or demands for new sports facilities to take up large areas of land and/or attract large numbers of users. In order to reduce travelling distances, such facilities are best located within or close to the population centres that they serve.
10.5.47 … [I]t is important that such proposals are environmentally acceptable. Therefore, in all instances, proposals will need to comply with policy RST1 together with other relevant Plan policies…".
Ground 2A: Failure properly to apply relevant policies
"Policy RST10… highlighted the importance of regional and sub-regional facilities. It was accepted that there were no other alternative sites which were viable, suitable and available…
That in respect of Policy RST10, the environment impact was deemed as acceptable with any concerns outweighed by the provision of regional sporting facility on a suitable, viable and affordable site…".
The reasons of the Committee were simply wrong to say that there were "no suitable sites within the urban areas to accommodate the facility". Leaving aside viability, Mr White submitted that there was simply no evidential basis for that conclusion.
"[T]here are no suitable sites within the urban area to accommodate the facilities."
"6.13 …. Policies RST1 and RST10 in particular are relevant. Policy RST1 sets criteria against which new sport and recreational development should be assessed and confirms that such development could be permitted in the countryside but only where the countryside is the primary resource for the proposal. This is not the case with this proposal.
6.14 However, Policy RST10 does allow for major sports facilities on the edge of Hereford where they are meeting identified regional or sub-regional needs. The policy also requires such schemes to be acceptable in terms of their environment impact and that they are located in a sustainable and accessible location. In principle, the sport facilities could therefore achieve policy support if a regional need exists. This is considered in this section of the report."
The reports thereafter focus on the requirements of RST10, rather than of RST1.
i) The restriction on permission for developments where "the countryside is the primary resource for the proposal" – not the case here – but that is covered by paragraph 6.13 of the First Report quoted above, which made clear that this proposal departs from that particular guidance.
ii) The restriction of new buildings to circumstances in which there are no existing building for conversion, they are of small scale and are ancillary to the main proposal. Mr White relied heavily on this provision in his reply. However, that restriction will necessarily be inappropriate for most if not all regional or sub-regional major sports facilities, which will by definition almost always require purpose-built buildings on more than "a small scale"; and so there is apparent in-built internal and inevitable conflict between Policies RST1 and RST10 in that regard. Looked at fairly and as a whole, the policy requirements that bite for such facilities are those set out in Policy RST10.
10.5.47 … [I]t is important that such proposals are environmentally acceptable. Therefore, in all instances, proposals will need to comply with policy RST1 together with the relevant Plan policies…" (emphasis added).
"It has… been demonstrated that… the environmental impact of the sports facilities are acceptable and the site is readily accessible by a choice of means of transport as required by [UDP Policy] RST10."
That essentially deals with the issue that is at the heart of RST1.
Policies LA2 and LA3
"[T]here are a number of positive elements to the development which can be given significant weight in the assessment of this application but on balance they are not considered sufficiently to outweigh the significant negative landscape and visual impacts of the development and the associated conflict with adopted policy requirements. The application is therefore recommended for refusal." (emphasis added)
The emphasised words appear to be a reference to Policies LA2 and LA3.
"The visual and landscape impact of the development on the Site and the setting of the city is acceptable in accordance with the requirements of [UDP] policies … LA2 and LA3…. Additionally, the Ecological Management Plan secures measures to restore and enhance the retained landscape features such as the orchard, native woodland belt and hedgerows thus fulfilling the criteria within [UDP] Policies LA2 [and] LA3…".
"This commitment to traditional and organic management of the orchard will contribute towards halting and reversing the decline in orchards within Herefordshire and nationally."
This was again discussed at the Second Meeting, where a speaker is recorded as supporting the point that:
"[W]ithin 3-5 years the organic status of the retained orchard would be established enhancing the landscape, wildlife and presence of flowers on the site." (emphasis added).
RSS Policies CF2 and PA1
Ground 2B: The Approach to the Development Plan.
i) a determination of whether the development proposal is or is not in accordance with that plan; and
ii) consideration of other material considerations.
He submitted that a positive determination of whether the proposal was in accordance with the plan was a vital step, and a prerequisite to a lawful decision, because it necessarily informed the decision-maker's approach to consideration of other material considerations in step (ii). If the proposal was in accordance with the development plan, then there was a presumption in favour of grant, and other material considerations had to be considered in that light. On the other hand, if it was not, then other material considerations had to be considered in the context of whether they justified departure from the development plan. In this case, the officers' reports did not clearly set out the requirements of section 38(6), and did not address the question of whether this proposed development was in accordance with the development plan. They gave the Planning Committee no sensible advice, or recommendation as to compliance. In their turn the Planning Committee failed to grapple with the issue, leading to confusion as to the proper role of the plan. In the absence of any determination of whether the proposal was in accordance with the development plan, the Committee's decision was unlawful.
"[The decision-maker] 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 the light of the whole plan the proposal does or does not accord with it."
"The minutes of the council's debates were not referred to in the summary reasons, and they do not in any event enable an answer to be given to the question: did the members think that this was a decision that was in accordance with the development plan, and if so for what reasons since they were disagreeing with the officers' view; or was this a decision that was contrary to the development plan but material considerations indicated that permission should be granted, and if so what were those material considerations which justified the departure from the development plan given that the officers had said that a departure was not justified?"
Mr White submitted that it was inherent in that that planning decision-makers are required to determine whether a proposal is in accordance with the development plan or not; and err in law if they do not.
"For the purposes of section 54A [the similarly worded predecessor to section 38(6)] it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein."
"47. To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
- identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
- identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;
- for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and
- set out their own approach to housing density to reflect local circumstances."
48. Local planning authorities may make allowance for windfall sites in the five-year supply …..
49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."
"Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of [section 54A of the 1990 Act, now section 38(6) of the 2004 Act] two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and, in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to 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 details 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 a 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 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 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."
"… [W]here the committee disagree with the officer's recommendation, it may not be so easy to assume that they have interpreted the relevant policies in the same way as the officer, particularly where a difference in interpretation might explain the difference in the conclusions they have reached. In any event, it must be evident from the summary reasons how and why the committee have rejected the officer's advice and thus come to the conclusion to which they have come. That can, of course, be done in any form."
"Section 38 of the [2004 Act] stipulates that all development should be considered in accordance with adopted policy unless material considerations indicate otherwise".
"[O]n balance, these factors are not considered sufficient to outweigh the negative landscape and visual impacts of the development, the loss of orchard and the associated conflict with adopted policy requirements."
Thus, they recommended refusal.
"In summary, the approval of the development is a departure from… Policy H7. However, having regard [to] the requirements of the [NPPF] and its presumption in favour of sustainable development, compliance with the other [UDP] 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".
Ground 3: The Environmental Statement
"… includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile; but that includes at least the information referred to in Part 2 of Schedule 4."
4. A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from… the existence of the development…".
1. A description of the development comprising information on the site, design and size of the development…" (emphases added).
Conclusion on the Merits