Town and country planning – Planning permission – Adverse impact on openness – Material consideration – Defendant local authority deciding to grant permission for football and athletics facility in green belt – Claimant applying for judicial review of decision – Whether defendants misinterpreting paragraph 89 of National Planning Policy Framework (NPPF) – Whether defendants failing to have regard to material consideration – Application granted
The defendant local authority granted planning permission for a new football and athletics facility in Walton-on-Thames in Surrey. The site was a 14 hectare former landfill site requiring remediation. It was located in the metropolitan green belt, adjacent to the river Thames. The proposed development would utilise land that was currently occupied by one football pitch, an area of informal open space and scrub land. All existing structures on the site would be demolished.
The claimant applied to quash the defendants’ decision on the grounds that: (i) the defendants’ planning committee had erred in its interpretation of paragraph 89 of the National Planning Policy Framework (NPPF); and (ii) the defendants had 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, conflict with the purposes of the green belt and affect its openness.
Paragraph 89 stated that a local planning authority should regard the construction of new buildings as inappropriate in green belt. An exception to that was the provision of appropriate facilities for outdoor sport, outdoor recreation and cemeteries, as long as it preserved the openness of the green belt and did not conflict with the purposes of including land within it.
Held: The application was granted.
(1) The court accepted the claimant’s submission that the defendants erred in their interpretation of paragraph 89 of the NPPF. The paragraph did not say that it permitted less than significant harm to the openness of the green belt. To be appropriate, new sports facilities had to preserve the openness of the green belt. The ordinary meaning of the word “preserve” was defined in the Oxford English Dictionary as meaning, “to keep safe from injury, harm or destruction”. The statutorily desirable object of preserving the character or appearance of an area was achieved either by a positive contribution to preservation or by development which left character or appearance unharmed, i.e. preserved: South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 applied.
(2) If a proposal had an adverse impact on openness, the inevitable conclusion was that it did not comply with a policy that required openness to be maintained. A decision maker did not have any latitude to find otherwise, based on the extent of the impact. In the present case, the defendants had concluded that there was an impact on openness but granted permission without considering whether, under paragraphs 87 and 88 of the NPPF, there were any special circumstances that would justify it. The defendants’ interpretation would significantly weaken policy protection for the green belt because a number of individual planning applications, each causing harm to the green belt (albeit less than substantial), could be permitted without the need to demonstrate very special circumstances: West Lancashire Borough Council v Secretary of State for Communities and Local Government [2009] EWHC 3631 (Admin) applied; Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin); [2002] 16 EG 181 (CS), R (on the application of Heath and Hampstead) v Camden London Borough Council [2007] EWHC 977 (Admin); [2007] PLSCS 70 and R (on the application of Lee Valley Regional Park Authority) v Epping District Council [2015] EWHC 1471 (Admin); [2016] EWCA Civ 404; [2016] PLSCS 120 considered.
(3) Having regard to the reasons given by the inspector in the earlier 2013 appeal decision, the proposal in that case was distinguishable from the proposal in the present case in material respects. The fact that the archery centre proposal was for an indoor archery centre played a significant part in the inspector’s reasoning on openness. The two proposals were materially dissimilar and plainly distinguishable. By making a decision on the present application, the defendants were not necessarily agreeing or disagreeing with any critical aspect of the inspector’s decision in the previous case: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 and Baber v Secretary of State for the Environment [1996] JPL 1034 considered.
Andrew Parkinson (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; Neil Cameron QC and Zack Simons (instructed by Elmbridge Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript:R (on the application of Boot) v Elmbridge Borough Council
