Court of Appeal dismisses appeal against 190-home rugby club move

Out-Law News | 02 Jul 2014 | 4:02 pm | 2 min. read

A parish council's appeal against a judge's backing for a 190-home rugby club development on open countryside in Herefordshire has been dismissed by the Court of Appeal.

Herefordshire County Council (HCC) granted outline planning permission in November 2012 for Hereford Rugby Club's proposals to relocate from its small ground near Hereford city centre to a 20 hectare site in the open countryside in the parish of Hampton Bishop. In addition to several sports pitches, a clubhouse, training facilities and car parking, the proposals included the construction of 190 residential units without which the move would not be financially viable.

Hampton Bishop Parish Council challenged HCC's decision to grant planning permission and was granted a judicial review. Reviewing the decision in December 2013, Mr Justice Hickinbottom upheld the planning permission before the High Court.

Appealing against the judge's order, the Parish Council argued before the Court of Appeal on 17 June that HCC had failed in its duty to determine the application in accordance with the local development plan and that it had misunderstood the importance of development plan policies.

Lord Justice Richards rejected this argument, finding that HCC had followed the appropriate procedure by first deciding that the proposals did not accord with the development plan and then considering whether other factors outweighed the presumption that proposals not in accordance with the development plan should be refused.

The judge said that reports and minutes relating to the decision showed that HCC "put the development plan (UDF) at the forefront of the exercise" and that planning committee members "understood perfectly well the importance of the unitary development plan policies." The members' judgment, that a policy in the UDF restricting development on open countryside was outweighed by "material planning considerations" was "a planning decision properly open to them", he said.

The Parish Council also argued that HCC had breached community infrastructure levy (CIL) regulations in its decision, by taking into material consideration as a factor in favour of granting permission an obligation on the rugby club to transfer its former ground to the council for £1 on completion of the move. The Parish Council argued that the obligation could not constitute a reason for planning permission under the CIL regulations as it was not directly related to the development and that planning permission was effectively being bought.

Rejecting the argument, Lord Justice Richards agreed with Mr Justice Hickinbottom's December 2013 judgment that the continued use of the ground as public amenity space had been important to HCC in its decision and that "it was perfectly proper for the planning committee to consider the future use of that land, as a material consideration for the proposed development."

The judge found that "the existing ground was going to be released as a direct result of the development for which planning permission was being sought" and that "the future use of the land was therefore one of the land use consequences of the very decision that HCC was taking."

"The continuation of the ground's existing use for sport and recreation might have been a practical likelihood in any event but the transfer to HCC ... would help in practice to safeguard that outcome", Lord Justice Richards said. "All this is far removed from 'buying planning permission'. It fits comfortably within the requirement that the planning obligation be directly related to the development."

Lord Justice Clarke and the Chancellor of the High Court agreed with Lord Justice Richards and the appeal was dismissed.