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

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a planning decision-maker must ordinarily decide whether a proposal accords with the development plan. That conclusion is necessary to give the plan its statutory priority and to assess whether other material considerations justify any departure. The decision-maker may choose the precise procedure, but must keep development-plan policies distinct from other material considerations.

A planning obligation may be a reason for granting permission under regulation 122 of the Community Infrastructure Levy Regulations 2010 where it is directly related to the development and necessary to make it acceptable in planning terms. An obligation concerning land released by the development may satisfy that test even if the land is elsewhere and the transfer is unrestricted.

Hampton Bishop Parish Council challenged a local planning authority’s grant of outline permission for a new rugby-club facility and 190 enabling dwellings in open countryside. The permission departed from a housing policy in the development plan, but the authority treated national planning policy, housing need and other benefits as material considerations.

The grant was also subject to a section 106 obligation requiring the club to transfer its former ground to the authority for £1 after relocation. Hickinbottom J dismissed the judicial-review claim: [2013] EWHC 3947 (Admin). The parish council appealed on whether the authority had complied with section 38(6) of the Planning and Compulsory Purchase Act 2004 and regulation 122 of the Community Infrastructure Levy Regulations 2010.

1. Appeal dismissed. Richards LJ, with whom Christopher Clarke LJ and the Chancellor agreed, held that section 38(6) ordinarily requires the decision-maker to determine whether the proposal accords with the development plan. Without that decision, the plan cannot receive its statutory priority and the nature and extent of any departure cannot properly be assessed.

2. The statute does not prescribe a universal two-stage procedure. A decision-maker may assess the plan and other material together, provided the plan’s priority is respected. Exceptionally, a specific conclusion on accordance may be unnecessary, for example where later policy statements mean that development-plan policies carry no weight.

3. The planning reports, committee minutes and reasons showed that members understood the proposal departed from the key countryside housing policy and that they treated the NPPF and other matters as material considerations capable of justifying that departure. Any imprecise description of compliance with other development-plan policies as material considerations was not material error.

4. The section 106 obligation to transfer the former ground was directly related to the development. The relocation would release that land, so its future use was a land-use consequence of the permission. Transfer to the council would in practice help safeguard its continued sporting and recreational use. The obligation was also necessary to make this finely balanced proposal acceptable in planning terms.

• Court of Appeal (Civil Division): dismissed the parish council’s appeal: [2014] EWCA Civ 878.

• High Court, Administrative Court: Hickinbottom J granted permission for judicial review but dismissed the substantive claim: [2013] EWHC 3947 (Admin).