High Court revokes planning permission for council sports centre for second time

Elmbridge Borough Council’s sports centre was built and opened two years ago without planning permission, the High Court has decided.

The Xcel Sports Hub facility which is on a 14.2 hectares site in Walton-on-Thames has been operational since September 2017 but Matthew Davison, owner of an adjacent hotel, has successfully challenged the planning permission granted by the council.

In January 2017 Supperstone J quashed an earlier planning permission for the development on grounds that Elmbridge erred in its interpretation of paragraph 89 of the National Planning Policy Framework by deeming the sports facility approved development despite it causing harm to the openness and purpose of the green belt.

Mrs Justice Thornton said she had before her a new challenge on the ground that Elmbridge contravened the principle of consistency in decision-making in departing, without reasons, from its previous finding that the proposed development would have an adverse impact on the openness of the green belt to deciding that it would not.

The council argued it was not required to consider its previous planning judgment, because the decision in question had been quashed.

Mr Davison said Elmbridge had made two inconsistent planning judgments in relatively short succession when none of the surrounding circumstances or policy framework had changed.

Elmbridge said it was entitled to give no weight to this as the first decision had been quashed by the court and it had considered a fresh application for the same project on its merits.

Thornton J said: “I find it difficult to accept [the council’s] argument that the consistency principle applies only to a decision and not to its underlying reasoning. I do not see how the two can be as hermetically sealed.”

Giving judgment, she said it had been incumbent on the planning officer and committee “to address the change in position on [green belt] openness between the two reports”.

She said: “The applications were identical in all material respects and related to the same site. Public confidence in the council's decision making was important given the earlier judicial criticism and given the council was awarding permission to itself.”

It had been clear that when Supperstone J quashed the earlier planning permission that his criticism did not extend to the issue of green belt openness.

“In the absence of any explanation it is simply not possible to know whether the planning officer and especially the planning committee were even aware they had changed their position, let alone whether they had grasped the intellectual nettle of the difference in view,” Thornton J said.

“Nor was the explanation for the apparent inconsistency so obvious that a formal statement about it was unnecessary. The court has been left to attempt to infer the reasons for the difference in view by a close scrutiny of both reports.”

She said the planning committee unlawfully failed to take into account its previous decision that the proposal would have an adverse impact on green belt openness, when determining the second application, and quashed the permission.

An Elmbridge spokesperson said: “We are disappointed by the judgement which has been made on one technical ground relating to the absence of a reason for a different approach between the original planning permission and the current one.

“We feel strongly that this is a highly arguable decision and we will be making an immediate application to the Court of Appeal for permission to appeal.

"We are carefully considering the implications of the High Court judgement and the way in which the perceived shortcoming in the planning permission might properly be addressed.

“In the immediate future the clubs and other users of the Sports Hub can continue to use the facility pending the outcome of the appeal application.”