High Court judge quashes planning permission for £17.9m sports facility

A High Court judge has quashed a council’s grant of planning permission for a new, £17.9m football and athletics facility.

The purpose of the planning application in Boot, R (On the Application Of) v Elmbridge Borough Council [2017] EWHC 12 (Admin) was to construct a waterside sports hub at a site in Walton-on-Thames, Surrey.

The site is a 14-hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt.

Elmbridge applied for planning permission on 5 March 2015. On 14 December the planning committee resolved to grant planning permission, subject to referral to the Communities Secretary and receipt of a legal agreement. Planning permission was issued on 26 January.

The claimant advanced two grounds of challenge:

• Elmbridge's planning committee erred in its interpretation of paragraph 89 of the National Planning Policy Framework ("the NPPF"). Under paragraph 89 a local authority should regard the construction of new buildings as inappropriate in Green Belt save for in certain situations including that “provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”;
• The council erred in failing to have regard to a material consideration, namely, an inspector's decision in 2013 in relation to a proposed indoor archery centre on an adjacent site, which was dismissed on the grounds that it would be inappropriate development in the Green Belt, and would conflict with the purposes of the Green Belt and would affect its openness.

On the first issue, a planning officer had concluded that: "Taking Green Belt policy as a whole the proposals comprised development which is appropriate within the Green Belt. There will be limited adverse impact on landscape and visual amenity and 'openness' of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation and by improving damaged land."

The claimant argued that if a new sports facility caused harm to the openness of the Green Belt - even limited harm - it was not appropriate development.

Mr Justice Supperstone ruled that the first ground had been made out. The judge said the conclusion of the council that the proposal had a "limited adverse impact on openness" of the Green Belt was not a finding that there had been compliance with the policy that required openness to be preserved.

“Accordingly even if the adverse impact referred to at para 95 of the OR [officer’s report] is acceptable for the purposes of DM17 [the council’s development plan policy – Green Belt (Development and New Buildings)], it is not acceptable for the purposes of para 89 of the NPPF,” he said.

The judge also accepted counsel for the claimant’s submissions that West Lancashire Borough Council v SSCLG [2009] EWHC 3631 established that if “a proposal has an adverse impact on openness, the ‘inevitable conclusion’ (see para 22 of the judgment) is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have "any latitude" to find otherwise, based on the extent of the impact.”

In the present case, Mr Justice Supperstone said, the defendant council “concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

The High Court judge rejected the second ground of challenge, saying the two proposals were materially dissimilar. By making a decision on the sports hub application, the council was not necessarily agreeing or disagreeing with any critical aspect of the decision of the previous inspector.