Planning permission – Development plan – Material considerations – Respondents granting planning permission for new rugby club and associated housing development – Development contrary to development plan policy against new housing in open countryside – Whether respondents failing to comply with statutory duty to decide application in accordance with development plan unless material considerations indicating otherwise – Whether entitled to take into account planning obligation on rugby club to transfer existing ground to respondents – Appeal dismissed
The first interested party was a rugby club which proposed to relocate from its existing ground to an out-of-town site that could provide all the facilities needed by a regional rugby club. Since the club had limited funds, the building of the new premises was to be made financially viable by an accompanying housing development of 190 residential units, including 35% affordable housing. The second interested party was a construction company with a commercial interest in building the housing element. The proposed development site lay outside the development boundary for Hereford, as identified in the relevant unitary development plan (UDP), and within an area for which the appellants were the parish council.
A planning application for the development was submitted to the respondent local planning authority. A report prepared by the respondents’ planning officer indicated that the development was contrary to various UDP policies, including policy H7 against new housing in open countryside, and that planning permission should be refused. A second report was later prepared following the introduction of the National Planning Policy Framework (NPPF), with its presumption in favour of sustainable development and requirement to identify a five-year supply of housing. By that time, a planning agreement had been reached, under section 106 of the Town and Country Planning Act 1990, by which the rugby club agreed to transfer its old site to the respondents for the nominal sum of £1 on the completion of its new facilities.
In September 2012, the defendants granted planning permission contrary to the planning officer’s recommendation. In their summary of reasons, they indicated that, while the development was contrary to UDP policy H7, it was acceptable in light of other matters including its sustainability, its contribution to meeting a housing shortfall and the section 106 agreement.
The appellant’s claim for judicial review of that decision was dismissed: see [2013] EWHC 3947 (Admin). On appeal, the appellant contended that the respondents had: (i) failed to comply 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; and (ii) acted in breach of regulation 122 of the Community Infrastructure Levy Regulations 2010 in taking into account of the section 106 agreement as a material consideration, since that agreement was not “directly related to the development”.
Held: The claim/appeal was allowed/dismissed.
(1) The introduction of the NPPF had not changed the statutory status of the development plan as the starting point for decision making. Proposed development that accorded with an up-to-date local plan should be approved and development that conflicted with such a plan should be refused unless material considerations indicated otherwise. While the NPPF might affect the weight to be given to policies in the development plan, the statutory duty to determine applications in accordance with the development plan unless material considerations indicated otherwise, in accordance with section 38(6) of the 2004 Act, remained the same. Even in a complex case, it was necessary, in order to give proper effect to the duty under section 38(6), to keep firmly in mind the distinction between development plan policies and other material considerations. Compliance with the duty in general required decision-makers to decide whether a proposed development was or was not in accordance with the development plan, since without reaching a decision on that issue they were not in a position to give the development plan its statutory priority. The decision-maker needed to understand the nature and extent of any departure from the development plan in order properly to consider whether such a departure was justified by other material considerations: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447; [1997] 3 PLR 71 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983; [2012] PLSCS 69 applied.
The respondents had not failed to comply with the section 38(6) duty. The planning officer’s reports had made clear to the respondents the importance of the development plan and the statutory priority to be accorded to it. The respondents had understood the importance of the UDP policies but, in respect of several of those policies, had differed from the planning officer’s assessment that the development would not comply with them. That was a planning judgment that was properly open to them. While the respondents had agreed that the development would be contrary to policy H7, the key policy in respect of new housing in the countryside, they had been entitled to find that the departure from the development plan in that sole respect was outweighed by the NPPF and other material considerations.
(2) The requirements of regulation 122 of the 2010 Regulations, including the requirement in regulation 122(2)(b) that a planning obligation could only be a reason for granting planning permission if it directly related to the development, were in part a codification of principles development in the case law: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154 and R (on the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20; [2011] 1 AC 437; [2010] 2 EGLR 103 considered. The planning obligation to transfer the rugby club’s existing ground to the respondents was directly related to the development since the ground was going to be released as a direct result of the development for which planning permission was being sought. The future use of the ground was therefore one of the land use consequences of the very decision that the respondents were taking. The transfer of the ground to the respondents would help to secure the continued use of the ground for sport and recreation. The situation was far removed from “buying” a planning permission and fit comfortably within the requirement that the planning obligation be directly related to the development. Since the planning obligation was also one of the material considerations that had justified a departure from policy H7 in the development plan, the obligation could also be said to be “necessary to make the development acceptable in planning terms”, so as to comply with regulation 122(2(a).
Sasha White QC and Andrew Byass (instructed by Clyde & Co LLP) appeared for the appellants; Richard Kimblin and Nina Pindham (instructed by the legal department of Herefordshire Council) appeared for the respondents; Ian Dove QC and Jack Smyth (instructed by Wragge & Co LLP) appeared for the interested parties.
Sally Dobson, barrister
