In the case of R (on the application of Hampton Bishop Parish Council) v Herefordshire Council & others [2013] EWHC 3947 (Admin), Hickinbottom J. gave a useful summary of the principles applying to a number of issues that arise in the context of planning decision- making. Hereford Rugby Club proposed to relocate from their ground on the banks of the River Wye (within a flood plain near Hereford City Centre) to a superior out of city ground with all of the facilities required by a modern amateur rugby club. The club had no significant funds and so the proposed development included nearly two hundred dwellings to enable the new sports facilities to be built. The club proposed that after relocating it would give its old ground to the Council and a s. 106 obligation was entered into providing that the new site would not be occupied unless and until the rugby club had transferred its existing ground to the Council for the nominal sum of £1. The planning committee of Herefordshire Council granted permission for the development, despite the officers having recommended refusal.

It was first argued that the Council had erred in taking into account the transfer of the rugby club’s existing ground to the Council as a material consideration. The claimant argued that the transfer of the existing ground was not directly related to the proposed development. That argument was rejected. Although the existing ground was some distance from the site of the new ground, the future use of the existing ground was directly in play. Sport England had stressed the importance of retaining the existing ground as a public amenity space and placing the ownership of the grounds in the hands of the Council was a means of achieving that. The Council was entitled to consider that the s. 106 agreement was necessary to make the proposal acceptable in planning terms: without the obligation to transfer the existing grounds, the development would not have been acceptable in planning terms and, while there may have been other means of making the development acceptable, the solution that had been negotiated was lawful.

A second ground was that the provision of “enabling housing” i.e. a housing project to make the construction of the new rugby club grounds financially viable was not a material consideration; or, if it was a material consideration, that the scope of such development must be restricted to that strictly required to enable the needed sporting development to proceed. Those grounds were given short shrift and rejected applying R v Westminster City Council ex parte Monahan [1990] 1 QB 87 and R (Sainsbury’s Supermarkets Limited) v Wolverhampton City Council [2010] UKSC 20.

As for the approach to the development plan, the Court rejected a number of challenged based on alleged misunderstanding or failure to apply relevant policy. Of more general interest, Hickinbottom J. rejected the contention that s. 38(6) of the Planning and Compulsory Purchase Act 2004 required planning authorities to engage in an explicit two stage process of ascertaining first whether the development proposal was in accordance with the development plan and then considering other material considerations. In practice, Hickinbottom J considered that it would be “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” (at paragraph 127). While authorities 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” (paragraph 129).