In R (on the Application of Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) the High Court heard a challenge to the grant of planning permission for a new football and athletics facility in Walton-on-Thames in Surrey. The site is a 14-hectare former landfill site requiring remediation. It is located within the metropolitan green belt, adjacent to the River Thames. A planning officer had reported to the council that the project would be an appropriate development in the metropolitan green belt, in that it would have only a “limited adverse impact” on the visual amenity and openness of the area. Any such impact was said to be outweighed by the public benefits of the scheme, the officer’s report said.
The claimant advanced a judicial review challenge on two grounds: first, that the planning committee erred in its interpretation of paragraph 89 of the NPPF; second, that 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.
The High Court quashed the planning permission, accepting the former ground but rejecting the latter. The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the 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” is not inappropriate development, but that conversely, if harm is caused to the openness of the green belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The claimant contended that the question of law raised by her first ground of challenge was whether a new sports facility could be appropriate development even if it caused harm to the openness and purposes of the green belt. This was suggested because the council found that the new stadium would cause harm to the openness and purposes of the green belt, but despite this found it was appropriate development and complied with paragraph 89 of the NPPF. The claimant submitted that the council’s interpretation of the policy was wrong. Her counsel contended that if a new sports facility caused harm to the openness of the green belt (even limited harm) it was not appropriate development. He submitted that if a proposal has an adverse impact on openness, the inevitable conclusion 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 the council concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paragraphs 87 and 88 of the NPPF there were very special circumstances that would justify it. Supperstone J accepted these submissions.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
