Town and country planning – Planning permission – Metropolitan open land – Appellant applying for judicial review of decision of respondent local authority to grant to interested party football club planning permission for training facility and associated development – Whether respondent erring in law in granting planning permission by misapplying or failing to apply relevant national policy and policies in development plan – Appeal dismissed
The respondent local authority granted the interested party planning permission for a training facility and associated development for Queen’s Park Rangers Football Club on a site known as Warren Farm, near Hanwell, west London. The 24.8ha site was in an area of metropolitan open land (MOL) within the green belt and had previously been used as a sports club. The proposed development involved the demolition of existing buildings and the redevelopment of the site to provide a first team training and academy facility comprising a number of buildings, including community facilities, together with car parking, flood lighting and landscaping. The appellant represented a group which objected to the development, expressing concerns about the status of the site as MOL and the implications of the proposal both in relation to the strictures of MOL policy and the use of the land for recreational purposes by the public.
The respondent’s planning officers prepared a report which concluded that the improvement to existing facilities, in conjunction with the availability of other open space areas in the general vicinity of the application site, outweighed the direct impact of the “loss” of public access to part of the development site. Overall, there were very special circumstances sufficient to outweigh any harm to the green belt, including the compelling need for the development, lack of alternative brownfield sites, benefits to the local community and the proposed steps to mitigate any harm to the openness of the MOL. The respondent accepted the recommendation in the report and granted planning permission. The appellant’s application for judicial review was dismissed: see [2017] EWHC 467 (Admin); [2017] PLSCS 72.
On the appellant’s appeal, issues arose: (i) whether the officer’s conclusion that “very special circumstances” existed to justify the grant of planning permission for “inappropriate development” on MOL was bad in law; and (ii) whether the respondent failed to take into account the proposal’s “conflict” with Policy 7.18 of the London Plan, which required the “loss of protected open spaces” to be resisted.
Held: The appeal was dismissed.
(1) A planning officer’s reports to committee had to be read with reasonable benevolence and realism, and not in an overly legalistic way. In this case, it could not properly be submitted in the light of the planning officer’s report to committee, that the respondent, with the benefit of the officer’s advice, had neglected any relevant planning issue or failed to have regard to any material consideration for the purposes of section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, or that its exercise of planning judgment was unreasonable in the Wednesbury sense. The officer’s report was comprehensive and thorough, its conclusions clearly reasoned and well within the ambit of lawful planning judgment. The essence of the exercise involved in a “very special circumstances” balance was that no planning harm or planning benefit should be left out of account. The error to be avoided was to take into account only the harm to MOL (or green belt) and to set that less than complete evaluation of harm against the whole range of planning benefits promised by the scheme. It followed that if the officer, in conducting the “very special circumstances” balance, neither failed to take into account anything that could realistically have made a difference to that exercise nor brought into account something that ought to have been omitted, the ultimate result would have been consistent with the approach indicated in Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government; [2014] EWCA Civ 1386; [2015] EGLR 33. On a fair reading of the officer’s report as a whole, that error had been avoided: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2018] J.P.L. 176 applied.
(2) The substance of the officer’s assessment here was legally sound. She did not fall into the error of “double-counting”. In principle, it was possible for a particular factor to be relevant, and to carry appropriate weight, in the consideration of more than one planning issue. It might serve to avoid or overcome or, at least, outweigh some real or potential planning harm, and it might also satisfy some planning need that would otherwise go unmet. There was no logical reason why the officer could not properly conclude, when considering the issue of public access, that “improvement to the existing facilities, in conjunction with the availability of other open space areas in the general vicinity of the application site” would first, “outweigh the direct impact of the ‘loss’ of public access to part of the development site” and second, meet an existing need that would not be satisfied without the development.
(3) Policy 7.18 of the London Plan was broadly strategic in content and purpose and had to be read and applied in the light of the specific terms in which protection was given to a particular area of open space at the local level in the relevant local development framework. The strategic imperative in Part B of Policy 7.18, which related explicitly to “Planning decisions”, was that the loss of protected open spaces was generally to be resisted unless equivalent or better quality provision was made. Although the officer did not refer in her conclusions to Policy 7.18, her assessment and advice reflected a true understanding and lawful application of that policy and she obviously understood that, if the proposal complied with the policies to which she referred, it necessarily complied with Policy 7.18 as well. In so far as it was relevant to the interested party’s proposal, Policy 7.18 was, in substance, lawfully applied in the making of the council’s decision.
Marc Willers QC and Justine Compton (instructed by Richard Buxton Environmental and Public Law) appeared for the appellant; Stephen Whale (instructed by Ealing London Borough Council) appeared for the respondent; Reuben Taylor QC (instructed by Withers LLP) appeared for the interested party.
Eileen O’Grady, barrister
