Hampton Bishop Parish Council, R (On the Application Of) v Herefordshire Council

Section 34 of the Town and Country Planning Act 1932 gave local planning authorities the power to enter into planning agreements for the regulation of development and use of land. That survived until section 12(1) of the Planning and Compensation Act 1991 which replaced that power, by then found in section 106 of the 1990 Act, with a power to enter into planning obligations set out in a new, substituted section 106. Such obligations are of course the subject of negotiation between the planning authority and developer, but can be imposed if not agreed.

To deter abuse, the Secretary of State issued successive policy guidance in relation to the exercise of this new power, now found in the National Planning Policy Framework (“the NPPF”) which was issued in March 2012 in replacement of many earlier policy documents. Paragraphs 203-204 of the NPPF, echoing earlier guidance, state:

“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.”

However, that is not now merely policy; because regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (SI 2010 No 948, “the CIL Regulations”) provides that, where a determination is made which results in a planning permission being granted for 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)).

It is clear that the Planning Committee considered the transfer of the existing ground a material consideration in their determination of the planning application: paragraph 17 of the Committee Minutes of 27 June 2012 refers to the “transfer of the existing rugby club site to the Council” as one of “a number of community infrastructure benefits to the residents of the County…”. By paragraph 3.4 of the Section 106 Agreement dated 17 September 2012 (referred to in paragraph 16 above), the owner of the Site covenanted with the Council not to occupy or cause or permit the occupation of the Site by the Rugby Club or anyone else unless and until the Rugby Club has transferred its existing ground to the Council for the nominal sum of £1.

Mr White submitted that the transfer of the existing ground to the Council is unlawful because it was not a material consideration and to include it as a section 106 obligation was in breach of regulation 122(2), as it was not directly related to the proposed development. In planning terms, the transfer of the existing ground has no connection or linkage with the proposed development; it is not, for example, included in the same proposed development, as was the case in R v Westminster City Council ex parte Monahan [1990] 1 QB 87 (the Royal Opera House development case, “Monahan”) and Derwent Holdings Limited v Trafford Borough Council and Others [2011] EWCA Civ 832 (the Old Trafford Cricket Ground development case, “Derwent”) in each of which the court had found there was sufficient relationship. Here, the proposed development site and the existing ground are several kilometres apart; no development of the existing ground was proposed in the application; and the case is, he submitted, in substance similar to R (Sainsbury’s Supermarkets Limited) v Wolverhampton City Council [2010] UKSC 20 (“Sainsbury’s v Wolverhampton”).

Sainsbury’s v Wolverhampton concerned compulsory acquisition, rather than the determination of a planning application; but similar principles apply. In it, a supermarket operator, in competition with another operator for the development of a site in Wolverhampton, offered to link the development of the site with the redevelopment of another site, in an area which the authority wished to regenerate, which the operator owned and which could only be effectively developed at a loss. The authority took the operator’s commitment to redevelop the other site into account when granting compulsory purchase rights over the primary site in its favour. The Supreme Court held that that it was wrong to do so, because the benefits of the development of the second site were not related to or connected with the development for which the compulsory acquisition was made.

There is “an impressive overburden of case law going back more than 40 years” upon “the apparently innocent expression ‘material consideration’” (R (Health and Safety Executive) v Wolverhampton City Council [2012] UKSC 34; [2012] 1 WLR 2264 at [49] per Lord Carnwath of Notting Hill JSC at [49]). However, that is a legal thicket into which I need not wander very far. The transfer of the existing ground was, as the Planning Committee well knew, to be a section 106 obligation. Regulation 122(2) of the CIL Regulations requires a section 106 obligation to be directly related to the proposed development. Although a section 106 obligation may not be objectionable if it secures objectives that cannot be taken into account as a material consideration in a planning determination (se, e.g., Derwent at [15]), if the transfer of the existing ground here were properly “directly related” to the proposed development, it was common ground before me that it would be a material consideration. The issue here is whether the transfer of the existing ground to the Council for a nominal amount was “directly related” to the proposed development.

I am quite satisfied that it was. The majority in Sainsbury’s v Wolverhampton made clear that planning decision-makers can take into account off-site benefits of a proposed development provided that such benefits are related to or connected with that development in a real (as opposed to fanciful or remote) way. Whether there is such a relationship or connection in a particular case will be fact-specific. There was, understandably, no linkage found in the Sainsbury’s v Wolverhampton case: but, in my judgment, there was clearly such a relationship or connection in this case in which the facts are very different. 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 (see First Report, paragraph 4.4), as had the Council’s own Parks & Countryside Manager (First Report, paragraph 4.11). 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 community amenity, namely the Council, was in the public interest; and, on the unusual facts of this case, was clearly “directly related” to the development.

Mr White pressed two particular points. First, he relied upon the fact that the offer to transfer the existing ground was not made in the original planning application, and appears to have been made only shortly before the First Meeting of the Planning Committee on 31 August 2011; and (Mr White suggested, significantly) there are no documents or other evidence as to how the possibility of such transfer came to be raised and then agreed. The transfer certainly appears to have been agreed between the First Report (in which it is not mentioned) and the First Meeting: as I have indicated, it first sees public light in the documents in the officer’s update report for that meeting. It may be somewhat curious why there is no evidence as to precisely how it came to be agreed, but it is no great surprise that it was raised at that time: as I have indicated, as seen in the First Report, both Sport England and the Council’s own Parks & Countryside Manager had stressed to the Planning Committee the need to retain the existing ground for continued public amenity as sports fields. It is not for me to speculate, but it seems to me unsurprising that the officers and then Planning Committee took that issue up, and unsurprising that the Rugby Club were willing to gift its existing ground once it had moved into the new facility. At that time, for the club, the old ground would likely become a liability. Being on the functional floodplain, it had no development value except as a sports ground (see First Report, paragraph 6.7); and, after the club’s move, they had no need for it as such and no incentive to continue its use as a public amenity. There is no evidence or the basis for any suggestion that there is anything sinister or unlawful here; only a local authority doing its duty and looking after the public interest and their needs; and a rugby club, having no use for its existing ground once its new facilities are available to it, being willing to gift that ground to the Council for continued public benefit.

Second, Mr White stressed that the future use of the existing ground had not been protected by any appropriate covenant in the section 106 agreement. That, again, he suggested was indicative of the nature of the transfer, namely the gift of potentially valuable land near the city centre with a view to “buying” planning permission for the proposed development. However, I do not consider that, in this case, such a covenant was necessary or appropriate:

For those reasons, I consider that, on the facts of this case, the transfer of the Rugby Club’s existing grounds to the Council for a nominal amount was, contrary to Mr White’s submission, directly related to the proposed development; and was a material consideration which the Planning Committee properly took into account in their determination of the application.

Although not appearing in his written grounds or submissions, in his oral submissions, Mr White also at least suggested that the transfer was in breach of regulation 122(2)(a) of the CIL Regulations in that it was not necessary to make the development acceptable in planning terms. He pointed to the fact that the transfer was not part of the original application; and to the absence of any evidence that, but for this obligation, planning permission would not have been granted.

It seems to me that that suggestion is inconsistent with the proposition that the Rugby Club were “buying” planning permission; but, in any event, it was a suggestion with which, so far as it went, I was unimpressed.

As I have already indicated (see paragraph 21 above), planning officers’ reports are addressed to a “knowledgeable readership” who can be expected to have “a working knowledge of the statutory test”, i.e. the members of the relevant planning committee who have considerable experience in planning matters. There is nothing in this case to suggest that the planning officers and Planning Committee members were not well aware of the statutory test for a section 106 obligation found in regulation 122 of the CIL Regulation.

As His Honour Judge Purle QC emphasised in Persimmon Homes North Midlands Limited v Secretary of State for Communities and Local Government [2011] EWHC 3931 (Admin), what is “necessary” for the purposes of regulation 122 is defined in terms of what is required “to make the development acceptable in planning terms”; and, therefore, a simple “but for” test is inadequate. What is acceptable in planning terms is dependent upon a complex web of policies and other material considerations, and a series of planning judgments. As I have said, there was evidence of the need to retain the existing ground use as playing fields, by way of a public amenity. However, in the circumstances of this case, if the section 106 obligation to transfer the existing grounds to the Council had not been extracted, then it would have been open to the Council through its officers to have negotiated some other entirely different benefit, or changed some other aspect of the proposal to make the entire whole acceptable in planning terms. It is impossible to say precisely what the result of such negotiations might have been. It can be said that, in this finely balanced matter, with the Section 106 obligations as agreed, the proposal was acceptable in planning terms; and, without them, as it stood it would not have been. Whilst I accept that it would have been helpful if the officers’ reports and reasons had been explicit – for example, somewhere setting out the precise requirements of regulation 122(2) of the CIL Regulations – they cannot be construed legalistically. There is no evidence that the Planning Committee did not approach their decision on a proper basis.

In passing, although merits were of course a matter for the Planning Committee, it is noteworthy that, whilst the public benefit of the Rugby Club gifting their existing ground may have been modest compared with the project as a whole, the Section 106 Agreement was said by officers to be “complex” (Second Report, paragraph 7.10); the decision on this planning application was said by them to be “very finely balanced” (Second Report, paragraph 7.1); and the need to maintain the existing ground in its current use had been made clear in the responses of Sport England and the Council’s own relevant manager.

In any event, for the reasons I have given, this ground fails.

As a second ground, Mr White submitted that the provision of enabling housing was not a material consideration, and the Planning Committee were wrong to use it as a justification for allowing the development. There is no express policy, national or local, for considering the provision of enabling development to allow a rugby club to relocate, a matter recognised in the First Report at paragraph 6.9. The cases concerning enabling development do not assist the Council or Interested Parties in this case, he said, because they relate to the improvement or renovation of important heritage sites or other national assets, such as the Royal Opera House (Monahan) or Old Trafford Cricket Ground (Derwent).

I can deal with this ground quite shortly. In my view, it does not have merit.

It is true that, as recognised by the officers, the relevant policy here does not expressly refer to the use of enabling housing to allow a regional sports development to proceed. However, policy does not – and is not intended to – cover every possible eventuality. The officers properly recognised that in paragraph 6.9 of the First Report, relied upon by Mr White:

“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).

As a matter of principle, there is no doubt that the financial dependency of one part of a development on another part may be a material consideration for planning determination purposes: indeed, it was said as long ago as 1988 that the point was “quite beyond doubt” (Monahan per Webster J at first instance, quoted with approval by Kerr LJ in the Court of Appeal at page 117D-E: see paragraph 45 below).

Monahan concerned proposed development which included the reconstruction and extension of the Royal Opera House to bring it up to international standards, with the erection of office accommodation on part of the site to enable the development of the opera facilities. The office development would be a departure from the development plan. In respect of the enabling part of the development, Kerr LJ put it thus (at page 111C-E):

“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.”

At page 117D-F, he quoted the following passage from the first instance judgment of Webster J, with which, he said, he entirely agreed:

“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.”

More recently, the relevant principles were considered – and affirmed – in both Derwent (see, e.g., [19]), and in Sainsbury’s v Wolverhampton. In the latter, Lord Collins of Maplesbury JSC, having considered the relevant authorities (including Monahan), said (at [70]):

“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…”.

As Mr Kimblin submitted, that provides a complete answer to this ground. The planning officers accepted (i) the need for the Rugby Club to relocate to ensure a sustainable future for the club and the game of rugby in Hereford (First Report, paragraph 6.6; and Second Report, paragraph 6.104), (ii) in terms of the scope of those facilities, a need for all of the facilities sought in the application (Second Report, paragraph 6.104), and (iii) that 190 residential units were required to fund those facilities (Second Report, paragraph 6.82). The Planning Committee were entitled to take into account the financial dependency of the rugby facility part of the development on the residential part. Indeed, they would have erred if they had not taken this into account: it was clearly a material consideration. The fact that we are here concerned with a regional or local benefit, rather than an opera house or international cricket ground is not to the point. In this case, the asset – the new rugby facilities – could properly be described as regional; but the principles are the same, although of course the wider the geographical value of the proposed enabled asset, the greater the weight a planning authority may be prepared to give to its enablement.

This ground is unarguable.

If, as I have found, the enabling development was a material consideration, Mr White submitted that the scope of such development must be restricted to that strictly required to enable the needed sporting development to proceed. In this case, the Planning Committee failed to consider (i) the scope of the needed rugby facilities, and (ii) the size of the residential development that would enable those facilities. In relation to the rugby facilities, he submitted that the club needed facilities up to RFU Model Venue 2; but the proposed development included facilities above this level, such as the 3G all-weather pitch and the indoor facility. If those facilities had been excluded from the development, as they ought to have been, then the required residential development to enable the facilities that remained would inevitably have been less.

However, again, I am unpersuaded by that submission.

It is true that the RFU had said that the rugby club’s current activities were at Model Venue 2 level. However, the July 2011 Planning Statement Addendum made clear that the planning application was not restricted to that level of facilities, because the need for facilities included an element enabling the Rugby Club to expand in the future, which they hoped and expected to do. Paragraphs 8.17-8.18 of that addendum read as follows:

“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.”

This was dealt with in paragraphs 6.96-6.104 of the First Report. The officers noted that RFU Model Venue 2 did not require all of the facilities sought (paragraph 6.96), and therefore the need for the additional facilities was questionable (paragraph 6.101). Because of the proposed restrictions in public use, the officers did not accept that the new facilities would be a “genuine community sports hub”, although other sporting use would be possible and neither Sport England nor the Council’s own Sport Development Officer had objected to the proposals on these grounds. From reading this section of the report, it appears that the officers were perhaps sceptical about the need for all these facilities. Nevertheless, having balanced all of these matters, the officers concluded that “the need for all the sports facilities is accepted” (paragraph 6.104).

The officers therefore expressly found that there was a need for all of the facilities sought in the application. They also concluded that 190 residential units were required to fund those very facilities (Second Report, paragraph 6.82).

The officers’ approach and conclusion is unimpeachable. This ground fails; indeed, I consider it is unarguable.

The Town and Country Planning Act 1947 required each of the newly formed local planning authorities regularly to survey its area and submit that survey to the Minister of Town and Country Planning with a “development plan”, indicating the manner in which they proposed that land in their area should be used.

Section 70(2) of the 1990 Act provided that, in dealing with an application for planning permission:

“… [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”.

Section 26 of the Planning and Compensation Act 1991 altered the significance of the development plan, by the addition of the following provision to the 1990 Act, as section 54A, applicable in England and Wales:

“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.”

Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) repealed that provision, and replaced it with the following:

“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.”

Section 38(3) of the 2004 Act defines “development plan” for an area in England outside London, as follows:

“… [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.”

At the relevant time, the development plan for Hereford comprised the Regional Spatial Strategy for the West Midlands adopted January 2008 (“the RSS”), and the Herefordshire Unitary Development Plan adopted March 2007 (“the UDP”). For the purposes of this claim, the UDP is the more pertinent document; and, in this part of the judgment, references to individual policies are to the UDP unless otherwise indicated.

National policy provides for a presumption in favour of sustainable development, described as “a golden thread running through both plan-making and decision-taking” (the NPPF, paragraph 14). The policies set out in the NPPF are the national Government’s view on what sustainable development means in practice, comprising three, mutually dependent strands: economic, social and environmental (the NPPF, paragraphs 6-8).

Policy S1 of the UDP sets the general local policy for the promotion of sustainable development:

“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.

Policies concerning natural and historic heritage are dealt with in chapter 9 of the UDP. Paragraph 9.4.2 of the introduction to the policies stresses that:

“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.”

Policy LA2 states:

“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.”

Policy LA3 states:

“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.

Those policies chime with paragraph D of RSS Policy PA1 which states that development proposed on the edge of major urban areas or other green field sites should meet the following criteria (amongst others) (i) there are no suitable alternatives available on previously developed land, and (ii) the development respects the natural environment.

In the UDP, the main policies for housing are found in chapter 5. The overall strategy for housing is set out in Policy S3, which states that housing will be provided to meet the needs of communities throughout the county, including the need for affordable housing, although the figures provided are only for the period to 2011.

With regard to development in the open countryside generally, the notes, at paragraph 5.4.66, say:

“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.

So far as Hereford itself is concerned, Policy H1 states:

“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…”.

Policy H7 takes up this theme. It states that:

“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.

Policies relating to sport and recreation are set out in chapter 10 of the UDP. In paragraph 10.4.2 of the notes, it is recognised that:

“… [R]ecreation… development in the countryside can damage its character or appearance if care is not taken in respect of scale, siting or design.”

Policy RST1 sets out the general criteria for the any development of recreation, sport and tourism facilities. It states, so far as relevant to this claim:

“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.”

Policy RST10 deals with major sports facilities:

“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.”

Two notes relating to Policy RST10 are particularly relevant, paragraphs 10.5.45 and 10.5.47:

“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…”.

Mr White submitted that the Planning Committee had failed properly to take into account several relevant policies within the development plan.

I was referred to a number of authorities in relation to this ground, including Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1065B, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86 at page 94 per Woolf J, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffman, City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 (the City of Edinburgh case”) at page 1459E per Lord Clyde (quoted below at paragraphs 115 and 128), and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at [17]-[19] per Lord Reed.

I need not quote from those cases at any length: the principles derived from them relevant to this claim are clear and uncontentious, as follows. As I have indicated (see paragraph 56 above), when determining a planning application, section 70(2) requires planning decision-makers to have proper regard to relevant policies within the development plan. They cannot have proper regard to relevant policies unless they understand those policies. They are therefore required to proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where the committee have failed to take a relevant policy into account, or misunderstood or misapplied a policy, then that may found a challenge to their decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance. Whilst they must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the committee, who are entitled to give a material consideration whatever weight, if any, they consider appropriate, subject only to their decision not being irrational in the sense of Wednesbury unreasonable.

Mr White submitted that the Planning Committee failed properly to consider, understand and apply Policies RST10, RST1, LA2 and LA3 of the UDP, and Policies CF2 and PA1 of the RSS. I will deal with those in turn.

Mr White submitted that the Planning Committee erred in two respects concerning Policy RST10, namely in respect of viability (see paragraphs 80-88 below) and accessibility (paragraphs 89-91 below).

First, the policy states that proposals for new major sports facilities, meeting identified regional or sub-regional needs, such as this proposed development, will only be permitted on the edge of Hereford where it can be demonstrated that no suitable site is available within the urban area. Mr White submitted that the only components of this policy relevant to the Planning Committee’s assessment of the application under the development plan were “suitability” and “availability”. The Committee erred by introducing a third component, namely viability. He submitted that viability could not be part of availability, because, if that were the case, it would render Policy RST10 empty, because open countryside sites are inevitably more viable than those in the city. He submitted that it is evident that the Planning Committee in this case relied on this third element – and that the element was treated by them as additional to suitability and availability – from documents such as the minutes of the Second Meeting, at which the challenged decision was made, which state:

“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.

The Council and Interested Parties accepted that viability was taken into account by the Committee; but submitted that viability was an important component of availability, and the Planning Committee were entitled (and, indeed, bound) to take it into account as a material consideration. A site which has potential development value for, say, residential use is not in any real or practical sense “available” for use as a sports ground, because no developer of sports grounds is going to purchase it at a residential land price and no owner is going to sell it for less than that price.

The need for the development having been established (see paragraph 47 above), the First and Second Reports considered alternative sites, in detail. The officers concluded (in the Second Report, paragraph 8.3) that there were several more appropriate sites round the city, but only the proposed site (i.e. “the Site”) was “available”. The Planning Committee in its reasons accepted that:

“[T]here are no suitable sites within the urban area to accommodate the facilities.”

Mr Dove went through each of the identified alternative sites within the Hereford urban area, submitting that none was suitable and available, even leaving aside viability. That submission appears to me to have some force – but it concerns merits, with which I am not concerned. The question is whether, in concluding that there were no suitable sites available in the Hereford urban area, the Planning Committee were right to have taken viability into account, as they in fact did.

In my judgment, they were entitled to do so.

Economic viability is as relevant here as it is in considering enabling development (see paragraphs 43-46 above), and the comments of Kerr LJ in Monahan (quoted in paragraph 44 above) are equally applicable. A site which is otherwise suitable but not economically viable for a particular development because the owner will not accept a proper price for the land for the proposed use is no more “available” than a site which the owner will not dispose to the developer for some other reason. To put that into context in terms of this case, for the proposed development, alternative site 5 farmland in North Hereford between Attwood Lane and Munstone Road (which was a proposed housing site) was just as unavailable as site 6b Hereford Racecourse (which had a functioning racecourse and golf club on it which could not relocate). In the real world in which our planning system works, it is unreal and contrary to common sense to insist that financial viability in this sense must be excluded from consideration in this context. It is noteworthy that, in the context of housing, under the NPPF a site is not considered developable unless it “could be viably developed” (see paragraph 47, footnotes 11 and 12).

Policy RST10 states that proposals for new major sports facilities such as this proposed development will only be permitted on the edge of Hereford where it can be demonstrated that no suitable site is available within the urban area. In my view, on a proper construction of that provision, where a site in the urban area is not viable for a needed sports development (because, for example, it has a higher use value attached to it, with the result that its owner will not in practice sell it at an appropriate price for land for sports facilities), then it is not a suitable and available site for the purposes of Policy RST10.

That does not of course render Policy RST10 empty. Although no doubt rarely, viable sites might become available within the urban area if other uses cease. Major sports grounds require a good deal of land, but in Hereford, as I have indicated, one of the alternative sites considered was the racecourse. That was not available, because it is a functioning racecourse and golf course with no opportunity to relocate. However, if the racecourse closed – or other open land in the urban area became available as a result of, e.g., a school closing – then such suitable land might indeed become available. However, at the time this application was considered there was no such land in Hereford.

For those reasons, in my judgment, the Planning Committee were entitled and indeed right to take viability into account in assessing whether the permissive part of Policy RST10 applied.

As a separate sub-ground, Mr White submitted that the Planning Committee failed to deal properly with the requirement of Policy RST10 that the development was located “to maximise accessibility to the public by a choice of modes of transport”. He criticised the summary reasons of the Planning Committee which, at page 11, merely concluded that the Site was “readily accessible”. That is not the same as concluding that accessibility had been maximised, said Mr White.

I accept that, on the basis of fine legal textual criticism, a finding that the Site was readily accessible does not necessarily imply that accessibility has been maximised. However, the summary reasons say that the Site is “readily accessible by a choice of means of transport as required by [UDP Policy] RST10” (emphasis added).

Mr White did not press this ground. In my view, the Planning Committee clearly had the right policy in mind, and considered that that policy was satisfied to the extent that the accessibility of the Site could not reasonably be improved beyond the proposals set out in the development proposal.

Mr White submitted that Policy RST1 was clearly relevant, and this development was in conflict with this policy – the 10 April 2008 screening opinion accepted as much – but it was not taken into account or apparently considered at all by the Planning Committee, not even being listed as a relevant policy in the summary reasons.

I have set out Policies RST1 and RST10 above (paragraphs 72-73). The First Report dealt with them, as follows:

“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.

Mr Kimblin and Mr Dove submitted that this focus was entirely understandable; because, in the context of this particular case, Policy RST1 added nothing of substance to Policy RST10.

I have found this ground one of the more difficult to determine; but, having considered it with particular care, I have concluded that the Planning Committee did not err in law in respect of Policy RST1.

Policy RST1 covers all proposed recreational, sport and tourist developments, in urban areas and in the open countryside. Policy RST10 covers only major sports facilities meeting identified regional or sub-regional need on the edge of Hereford or other settlements, i.e. by definition outside urban areas. As Mr Kimblin and Mr Dove submitted, there is indeed considerable overlap between the two policies. The former permits new recreation, sport or tourist facilities generally where there is need, respect for the environment and good accessibility by a choice of modes of transport. All of those are factors which are, in substance, replicated in the permissive provisions of Policy RST10, and were considered in great detail in the officers’ reports. The final requirement of Policy RST1 (no harm to the amenity of nearby residents) is not expressly replicated in Policy RST10; but, in this case, that was a factor expressly and in some detail considered by the officers, who concluded that the proposal had no negative effect on amenity (see First Report, paragraphs 6.128 and following).

So far as the second part of Policy RST1 is concerned – the part that deals permissively with proposals for new recreation, sport and tourist facilities in the open countryside – that focuses on the impact on landscape and environment, as does Policy RST10: Policy RST1 requires the rural landscape and environment to be sustained, whilst Policy RST10 requires demonstration that the facilities are “acceptable in terms of environmental impact”. So there is considerable overlap here, too. The only elements in Policy RST1 not covered are:

I accept that other planning decision-makers may have dealt with Policy RST1 in a different way; but of course that is not the test. In concluding that the Planning Committee did not err in law in respect of Policy RST1, I have particularly borne in mind that development plans are not to be construed legalistically (see, e.g., R v Rochdale Metropolitan Borough Council ex parte Milne [2001] JPL 470 at [51]). I also bear in mind that, at the heart of Policy RST1 (as well as Policy RST10), is the object of ensuring that the proposals are environmentally acceptable. Hence, in paragraph 10.5.47 of the explanatory notes to Policy RST10 it is said:

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).

In this case, the environmental acceptability of the proposal was the focus of the officers’ reports – in short, they considered it was not acceptable – and was dealt with head-on by the Planning Committee – who considered it was. In their summary reasons (at page 11), the Committee concluded that:

“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.

Therefore I have concluded that, so far as this proposed development is concerned, the Planning Committee in substance took into account the essential policy elements of RST1, although focusing on the more specific policy requirements of Policy RST10. Consequently, this ground fails.

The challenges in respect of these two policies can conveniently be dealt with together.

Mr White submitted that the officers concluded that the proposal would cause “unacceptable adverse change to the landscape character of the area which cannot be adequately protected or mitigated” (First Report, paragraph 4.15; in substance repeated in the Second Report, paragraph 6.154). In the summary of the Second Report, they concluded:

“[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.

However, in the face of that advice, in its summary reasons, the Planning Committee concluded that (page 12):

“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…”.

Mr White submitted that the Committee members simply failed to understand that there would be an adverse impact on the character of the landscape and its key attributes and features, or alternatively erred in considering that any adverse impact could be mitigated by the Ecological Management Plan.

However, as indicated in paragraph 9.4.10 of the notes in the UDP (set out in paragraph 64 above), Policies LA2 and/or LA3 each require a planning judgment to be made as to whether the proposed development will indeed result in any significant adverse impact on the overall landscape character and setting. In this case, that was an issue. The officers considered that the adverse impact was not acceptable. There was a debate about this issue at the Second Meeting, with at least one speaker being recorded as being of the view that it was acceptable, and the application was thus in accordance with Policies LA2 and LA3. In the event, the Planning Committee disagreed with their officers, finding, in essence, that the mitigation proposed was adequate with the result that the proposed development had no significant adverse impact on respect of these broad-looking factors. It was clear that that was a main issue – indeed, probably the main issue – with which they had to grapple. It was of course open to the Planning Committee to come to a different judgment on that issue from their officers.

In terms of mitigation, it is clear that the Committee did not rely solely on the Ecological Management Plan in this regard – hence the word, “Additionally…” – but the suggestion that they could not properly take it into account in this context is, in my view, wrong. For example, paragraph 11.140 of the Environmental Statement says that, although of course the proposed method of managing the remaining orchards was aimed at ecological impact:

“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).

Mr Kimblin and Mr Dove submitted that the whole challenge to the grant of planning permission in this case is really an attack on the merits of the planning decision made by the Planning Committee, with which decision of course the Claimant disagrees. Certainly, I consider this ground to be such a challenge. It is inconceivable that the Committee were not fully aware of the potential adverse effects that this development would have upon the environment and landscape, and they were clearly aware of the mitigation of those effects that was proposed. It was open to them to conclude that there was no significant adverse effect on the overall landscape and visual impact, and consequently the development was in accordance with Policies LA2 and LA3. That was a planning judgment open to them to make. In coming to the conclusion that they did, in my judgment, the Committee did not err in their approach to Polices LA2 and LA3. They merely came to a different judgment from their officers on the exercise of planning judgment involved.

For those reasons, this ground fails.

Mr White submitted that RSS Policies CF2 and PA1 were not considered, properly or at all, by the Planning Committee. He points out that neither policy is referred to in the Committee’s summary grounds, not even in the list of relevant polices. They erred, he submits, in not taking account of these important policies.

It is trite to say that a planning decision-maker need not refer to every policy that may possibly be relevant to a planning determination. RSS Policy CF2 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 principles of that policy are entirely covered by relevant UDP policies, particularly LA3 and H1 including paragraph 5.4.66 of the UDP notes (see paragraph 68 above). RSS Policy PA1 states that development proposed on the edge of major urban areas or other green field sites should meet the following criteria relevant to this claim, (i) there are no suitable alternatives available on previously developed land, and (ii) the development respects the natural environment: the principles of that policy are also entirely covered by relevant UDP policies, particularly LA3 and to an extent H7.

It is – or should be – unsurprising that a local plan in substance reflects regional policies. In this case, the two RSS policies upon which Mr White relies were essentially replicate policies of their UDP counterparts, and did not add anything of substance to the relevant UDP policies.

This ground consequently fails.

Mr White submitted that the Planning Committee erred in their approach to applying the development plan, in that they failed to make any determination as to whether the proposed development was or was not in accordance with the development plan which, he contended, they were obliged to do.

His submission ran thus. Section 38(6) of the 2004 Act required the determination of the planning application to be made “in accordance with the plan unless material considerations indicate otherwise”. Leaving aside the identification of the extant development plan – straightforward in this case – that demanded a two-stage process:

In support of that proposition, Mr White relied upon four authorities. First and primarily, there was this passage from the opinion of Lord Clyde in the City of Edinburgh case, at page 1459E-F:

“[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.”

Second, he referred to the judgment of Sullivan LJ in R (Macrae) v County of Herefordshire Council [2012] EWCA Civ 457 at [28], in which he said of the case then before the court:

“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.

Third, he relied on Milne at [50] where Sullivan J, as he then was, said:

“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.”

Fourth and finally, he referred to R (Cummins) v London Borough of Camden [2001] EWHC 116 (Admin) (“Cummins”) at [188] per Ouseley J.

Mr White put this submission with great force; but I cannot accept it. In my judgment, it runs contrary to principle, authority and practice.

With regard to principle, whilst by posing a binary question the submission has the superficial attraction of simplicity, it fails to recognise the true nature of development plans and the true task of planning decision-makers in applying the plan in a particular case.

In respect of a planning determination, section 70(2) of the 1990 Act requires the decision-makers to have regard to “the provisions of the development plan”, making it clear that each provision or policy of the plan, if relevant in a particular case, is a material consideration. Like the concept of “sustainable development” as recognised in the NPPF, a development plan seeks to reconcile policies reflecting numerous conflicting interests, including the need for more housing, the need for more sports and recreational facilities, and the need to protect certain environmental and other assets (see Milne at [49]). It seeks to promote this often difficult reconciliation in a variety of ways, e.g. it sets out exceptions to policies, which exceptions often have their own clear policy objective. In any event, although development plan provisions are frequently in absolute form – e.g. that certain forms of development “will not be permitted” – they are only matters of policy guidance. Within a development plan, no consideration is given absolute paramountcy, the plan often giving guidance as to how a decision-maker should approach considerations that are in conflict, or expressly stating that harm to a public interest may be acceptable if outweighed by other public interests; and the weight attributed to any particular policy within the plan is ultimately a matter for the relevant decision-makers, provided that they take into account and properly respect the relevant policy strands.

As I have said, the development plan seeks to reconcile conflicting interests and policies. Where, in relation to a particular proposal, such a reconciliation is achieved within the parameters of the development plan itself, then the proposal is in accordance with the plan for the purposes of section 38(6). That does not of course mean that the proposal will necessarily positively contribute to every policy within the plan – and, indeed, it may well depart from some individual policies within the plan – but, where such departures are justifiable and (in the judgment of the relevant decision-makers) justified within the policies and parameters of the plan itself, the proposal will be “in accordance with the plan”. That is what is meant when it is said that section 38(6) requires the determination of a planning application to be in accordance with the development plan looked at as a whole, and not in accordance with each relevant policy of the plan (see Milne at [50]; and Cummins at [162] per Ouseley J). It is only where a departure from a particular policy within the development plan cannot be justified within those parameters that justification has to be sought from “other material considerations”, i.e. material considerations other than those found within the development plan itself.

So far so good. That is, relatively speaking, conceptually straightforward. However, in practice, things are not so simple. They are complicated by a number of factors which, for example, blur the distinction between policy guidance found within the development plan and that found outside it. One of the “other material considerations” is national policy, currently found primarily in the NPPF. That national policy has to be taken into account in the preparation of local plans, but is also a material consideration in planning decisions (NPPF, paragraph 2). In a number of respects, it impacts on extant development plans. Generally, whilst full weight could be given to local plans until March 2013 (NPPF, paragraph 214), after that date weight is to be given to local policies only according to their degree of consistency with the NPPF, i.e. the closer the development plan to the policies in the NPPF, the greater the weight that might be given to them (paragraph 215). But even before March 2013, the NPPF had a significant impact on development plans as they then stood.

By way of example, future housing provision is dealt with in paragraphs 47-49 of the NPPF, which provide as follows:

“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.”

This guidance, which became immediately effective from March 2012, is not only relevant to the housing requirement to be used for strategic plan-making by local planning authorities, but informs the approach of decision-makers when determining a particular planning application. In the latter case, it is particularly relevant when the local authority cannot demonstrate a particular future supply of deliverable housing sites. If the authority cannot demonstrate a five year plus buffer supply of housing land at the time of a planning application for housing development, then that affects local policies as to how that need can be met: it weighs in favour of a grant of permission. In particular, in those circumstances, (i) relevant development plan housing policies are to be regarded as out-of-date, and hence of potentially less weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. That presumption is, again, of course not irrebuttable: it may be rebutted by other material considerations.

In this case, at the time the Planning Committee considered the proposal in June 2012, the Council was unable to demonstrate a five year future housing supply, so the NPPF provisions had a direct impact on the extant housing policies found in the UDP, e.g Policies H1 and H7.

That is merely one example of how, in a more complex planning application such as this, it is difficult if not impossible to keep policies and thus material considerations found within the parameters of the development plan separate from material considerations found outside it. They are, sometimes, inextricably interwoven.

As might be expected, this has been recognised by the courts, which have made clear that, in some cases, it will not be appropriate to adopt the staged-process Mr White puts forward as legally obligatory; and that relevant decision-makers have a wide discretion as to the way in which they ensure that the requirements of section 38(6) are met. That discretion is wide enough to include a one-stage process in appropriate cases. That is made clear beyond peradventure by Lord Clyde in the City of Edinburgh case, in which the argument now run by Mr White was relied upon by the Secretary of State. It was firmly dismissed. Shortly after the passage upon which Mr White relies (quoted at paragraph 115 above), Lord Clyde said this (at page 1459H-1460D):

“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.”

The rest of the House agreed with Lord Clyde. In my view, that passage provides a conclusive answer to Mr White’s submission. 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. Whilst I bear in mind Lord Clyde’s caution about giving even general guidance as to the appropriate process, it seems clear that, the more complex the proposed development and the web of policies that are relevant to it, the less likely it is that a two-stage process will be appropriate.

Therefore, the City of Edinburgh case, far from supporting Mr White’s proposition, fatally undermines it.

Turning to the other authorities upon which Mr White relied, Macrae was another case in which the officers of Herefordshire Council repeatedly recommended refusal, but the Planning Committee disagreed and determined that planning permission should be granted. The relevant ground of appeal concerned the contention that, in breach of article 31(1)(a)(i) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No 2184), the Planning Committee failed to give an adequate summary of their reasons for their decision. The officers had concluded that the proposal was not in accordance with the development plan, and there were no other material circumstances that justified grant. In those circumstances, it was incumbent upon the Committee, if they disagreed with their officers, to say why they did so. As I recently emphasised in R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) at [43(v)]:

“… [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.”

It can be done in any form; but it must be done in one form or another. In Macrae, Sullivan LJ merely concluded, as was clear, that the Planning Committee had failed to explain why they had disagreed with their officers, and failed to make clear that, in doing so, they had properly construed and applied section 38(6). The case turned on its own facts. It is not authority for the general proposition that a planning decision-maker must always, as a matter of law or practice, make an express determination as to whether the proposed development is in accordance with the development plan. Such a proposition could not be made – and, certainly, would not be made by Sullivan LJ – without proper consideration of the City of Edinburgh case, which is House of Lords’ authority to the contrary.

The other two authorities can be dealt with very shortly. In Milne at [50], the point Sullivan J was stressing was that, to accord with a development plan, a development does not have to accord with every provision and policy in that plan: it is not authority for the proposition for which Mr White contends. Nor, simply, is any part of Cummins at [188]. In neither case was the City of Edinburgh case raised on this issue.

Therefore, Mr White’s first ground fails, as a matter of law.

To the extent that Mr White relied upon the residual ground that, even if there was no obligation upon the Planning Committee to determine whether the proposal was in accordance with the development plan, the Committee nevertheless failed properly to understand and comply with the requirements of section 38(6), I do not consider that ground made good either.

The Planning Committee were council members, experienced in planning matters, who could be assumed to know what the statutory test set out in section 38(6) required (see Oxton Farms per Pill LJ, referred to at paragraph 21 above). In any event, the purport of that provision was set out in paragraph 6.26 of the First Report, albeit in the officers’ own words:

“Section 38 of the [2004 Act] stipulates that all development should be considered in accordance with adopted policy unless material considerations indicate otherwise”.

By the time of the Second Report and the challenged decision of the Planning Committee, the NPPF had been adopted. In their Second Report, at paragraph 7.14, the officers identified there that the proposal was in open countryside and, not being within any of the specified exceptions, it was contrary to Policy H7 which, in terms (albeit policy terms), does not permit of housing development in the open countryside outside Hereford (see paragraph 70 above). At paragraph 8.8, having set out and considered the effect of the NPPF housing supply provisions and other factors that favoured grant, they concluded that:

“[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 their summary reasons, the Planning Committee came to the conclusion that there was no departure from Policies LA2 and LA3, because the effect of the development on the landscape and visual impact was acceptable, as I have found they were entitled to do (see paragraphs 101-108 above). But they were concerned about the departure from Policy H7. They accepted, as their officers had, that the proposed development fell within open countryside and did not fall within any of the exceptions within Policy H7 of the UDP (page 11). They then consider the material planning considerations that justified departing from that policy, and concluded as follows (on page 12):

“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”.

From this it is clear that they addressed the same questions as the officers, but came to different planning judgments, namely that (i) the environmental, landscape and biodiversity impact of the proposal was acceptable, and there was no departure from Policies LA2 and LA3; and (ii) the departure from Policy H7 was justified by other material factors, including particularly the NPPF policy guidance on housing supply. In coming to those conclusions, there is nothing substantial to suggest that they did not properly respect the priority given to the development plan. They identified the respect in which they considered the proposal departed from it, and expressly found that other identified material considerations justified that departure.

On the basis of the flexibility given to planning decision-makers, the Planning Committee were entitled to take the approach that they did, in this planning determination which was complex and included interwoven development plan and national policies. In doing so, they did not err in construing the requirements of section 38(6) and applying them in this case.

Finally, Mr White submitted that the Planning Committee erred in proceeding on the basis that they had required environmental information about the proposed development, when they did not.

European Directive 2011/92/EU, implemented in the United Kingdom by the Town & Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824, “the 2011 Regulations”), is designed to ensure that developments which may have a significant effect on the wider environment (“EIA developments”) are subject to enhanced consultation and assessment of that effect. By regulation 3(4) of the 2011 Regulations, a planning authority shall not grant planning permission without having taken the environmental information into consideration.

The screening opinion in this case found that this development was an EIA development, and was thus subject to environmental assessment. The Rugby Club were thus required to submit an environmental statement, defined by regulation 2(1) of the 2011 Regulations as a statement that:

“… 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.”

Parts 1 and 2 of Schedule 4 provide, so far as relevant to this claim, that the environmental statement must include:

“Part 1

…

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…”.

Part 2

1.

A description of the development comprising information on the site, design and size of the development…” (emphases added).

Mr White submitted that the environmental information that the Planning Committee had was defective in two ways. First, the environmental statement assessed an enabling residential development of 250 dwellings, whereas, after the July 2011 revisions, the number of residential units was 190. No updating assessment was lodged. Second, the environmental statement did not assess the effects of the future use of the existing ground, the transfer of which was a cumulative effect of the development. As a result, in granting planning permission the Council were in breach of regulation 3(4) of the 2011 Regulations, or alternatively the Planning Committee did not have a sound basis upon which they could properly have reached a conclusion with regard to the environmental effects of the proposed development

When he directed a rolled-up hearing, Judge Cooke was clearly not enthusiastic about this ground, and Mr White did not press this ground hard. The instinct of each was right: the ground is unarguable. An environmental statement is required to set out only significant environmental effects. It is difficult to see what significant effects there could be either in reducing the number of residential units from 250 to 190, or in the existing ground continuing its existing use. Mr White did not offer any suggestions. In the context of this particular issue in this case, size does not matter; and cumulation does not arise at all.

It is telling that the Planning Committee did not seek any further environmental information. They had a wide discretion as to the environmental information they considered sufficient for EIA purposes. Of course, had they thought further information necessary, they had the powers to require the Rugby Club to provide it. They were, quite clearly and understandably, satisfied with the information that they had.

This final ground has no legal merit.

For those reasons, despite his determined and able efforts, Mr White has made good none of his grounds.

As I have come to the decision on the merits which I have, it is not necessary for me to deal in detail with the contention, made with particular force by Mr Dove, that the application for permission should be refused on the basis that, although brought within three months of the planning decision challenged, the claim was not brought promptly.

In short, the Planning Committee resolved to grant planning permission at their meeting on 27 June 2012, and the permission was issued on 17 September 2012 after the Section 106 Agreement had been completed. Therefore, the Claimant knew that permission was going to be granted in June, but the decision being challenged – and the starting point for time to challenge – was 17 September 2012. The pre-action protocol letter was sent on 10 October 2012, to which the Council and Bloor responded promptly. Although the Claimant raised a disclosure point, that did not lead to any loss of time. The claim and grounds were settled on 22 November. The claim was eventually issued on 12 December 2012, just within the three month period.

Mr Dove was very critical of this delay. Echoing the words of Simon Brown J in R v Exeter City Council ex parte J L Thomas Limited [1991] 1 QB 471 at page 484G, he said that the Claimant had not acted with “the greatest possible celerity”. Bloor, his ultimate clients, wish to begin construction work, and have understandably felt commercially constrained not to begin it whilst this claim has been hanging over the development. I understand Bloor’s commercial desire to get on with this development: the evidence is that building costs have gone up significantly in the last year, whilst housing prices in Hereford have gone down. I was unimpressed by Mr White’s submission that Bloor ought to have taken some steps to progress the development in the meantime. Bloor are a commercial organisation, and one can understand their reluctance to expend money on a project at risk.

However, the reason why public law claims must be brought promptly is not focused on private interests, but rather in the public interest of having development that the relevant democratically-elected decision-makers have determined is itself in the public interest. In this case, this development will not only result in additional public amenity in the form of the sports facilities, but will also provide much needed housing, market and affordable, of which Hereford is short.

I do not underestimate the challenges faced by individuals or, in the case, a small parish council of a parish of just 170 homes, who wish to bring such a claim as this. The Claimant here had to obtain proper authorisation to bring the claim, and then deal with an after-the-event insurer, as well as instructing legal representatives. There was a two week delay due to flooding. I appreciate that the Claimant too considers it is acting in the interests of a section of the public, namely of those who live in its parish. Nevertheless, there is a particular public interest imperative to bring planning claims on promptly.

Given my views on the merits of this claim, I need only make two particular comments in this regard.

First, since the issue of this claim, CPR Rule 54.5(5) has been introduced, which reduces the time in which a claim for judicial review in a planning case should be commenced from three months to six weeks. That is a clear indication to those who bring such claims that they must make them quickly, or face the real risk of being refused permission to extend time and bring the claim.

Second, over and above the time between the relevant decision and the issue of this claim, I have been concerned about the delay in listing this application for hearing. On 14 February 2013 – nearly a year ago – Judge Cooke ordered that there be a rolled-up hearing, and directed that it be listed “as soon as possible after 1 May 2013”. Since Judge Cooke made those entirely appropriate and sensible orders, the President of the Queen’s Bench Division has introduced target dates for planning cases, which include targets for a substantive hearing of three months from entering the warned list (which means, out of London, in effect three months from the grant of permission). Rolled-up hearings are the subject of a similar target.

I have not investigated why it has taken so long for this application to come on. It was apparently listed before the targets became effective, and, without seeking to blame any individual Counsel or clerk (indeed, readily accepting that, in this case, none may be to blame), it seems that December was the first time that all parties’ Counsel were available. I understand the importance of a party having the Counsel of its choice, where possible; but I should emphasise that, in the future, delays in excess of the protocol targets will not be allowed merely because of Counsel’s availability. It is in the public interest, as well as the interests of all parties to planning cases, that challenges to planning decisions are determined, to a conclusion, promptly; and, if necessary, they must be listed even if the first-choice Counsel of each party is not available.

This is a rolled-up hearing. I have given my views on the merits of each ground. I consider some grounds, including Grounds 1B, 1C and 3, to be unarguable. None of the other grounds, although possibly arguable, has been made good. Despite the forceful submissions of Mr Dove, I am not minded in this case to refuse permission solely on the grounds of delay.

In the circumstances, I propose simply to grant permission to proceed generally, but refuse the substantive application on each ground; and I so order.