The claim revolved around the grant of planning permission for a new rugby club and the construction of 200 homes. The claimant sought to quash the decision on the grounds that it had been made unlawfully. The claim was dismissed.

Hinckinbottom J noted that the “claim raises important issues relating to the principles of planning decision-making in the context of a development plan, and their application to modern-day circumstances in which proposals for development are often sophisticated and complex, in both commercial and planning terms”.

There were a number of grounds of challenge. The one which deserves most interest related to the applicability of regulation 122 of the CIL regulations.

As part of a package of measures included within the section 106 agreement, Hereford Rugby Club agreed to transfer its ‘old’ grounds to the Council for £1. The claimant argued that this was 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.  It was argued that in planning terms, the transfer of the existing ground had no connection or linkage with the proposed development; the proposed development site and the existing ground are several kilometres apart; and no development of the existing ground was proposed in the application. In short, the gift was a sweetener rather than a valid material consideration to which the Council was properly entitled to have regard.

The Judge held 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.  He went on to observe that 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.  In this case, there was evidence of the need to retain the existing ground use as playing fields, by way of a public amenity. 

The Judge concluded:

The whole purpose of the proposed development was 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.”

Counsel: Richard Kimblin and Nina Pindham

Interested Parties: Ian Dove QC and Jack Smyth