Town and country planning – Development – Metropolitan open land – Claimant applying for judicial review of decision of Defendant local authority to grant planning permission for erection of school on metropolitan open land – Whether defendants having information to reach proper planning decision – Whether requirements for building on existing open space in paragraph 74 of National Planning Policy Framework being met – Application dismissed
The defendant local authority granted planning permission for the erection of a free school covering both primary and secondary education, with ancillary access parking, sports pitches and a multi-use games area, on metropolitan open land (MOL) land at Syon Green, Isleworth in West London. The site contained a private sports ground that had not apparently been used for about seven years but the site had been used by the public for recreational purposes. The defendants accepted that there were considerable advantages to a school covering primary and secondary education and that it was necessary to have the whole school on the same site, or at the very least with a physical connection between two separate sites. The planning officer’s report concluded that the lack of available alternative sites, coupled with the need for school places in the area and the retention of much of the site as open space, meant that very special circumstances had been demonstrated to justify the proposed development.
The claimant, a member of an organisation which actively opposed the development, applied for judicial review of the decision to grant planning permission. The claimant contended that: (i) the planning committee had not been given the information required to enable it to reach a proper planning decision. The officer’s report had failed to consider that the development would be linked to another academy on the site of a rugby club which could relocate to the part of the MOL not covered by the proposed school, there had been a failure to consider the effect of the transport arrangements on other possible developments, it was improper for the need for school places to take precedence over the harm caused to the MOL where that need was covered by the local plan and the assessment made of alternative sites was defective; and (ii) there had been a breach of paragraph 74 of the National Planning Policy Framework (NPPF) as none of the requirements had been met for building on existing open space, sports and recreational buildings and land and the requirement that there should be replacement by equivalent or better provision could not be met where, notwithstanding that the proposal included a suitable location and it seemed likely to be better quantitatively and qualitatively, around a quarter of an open sporting area was no longer available.
Held: The application was dismissed.
Since the development was on MOL, it was necessary to show that there were very special circumstances justifying the development which was contrary to the requirements of the local plan and was inappropriate in MOL. It was equated in that respect essentially to green belt development and it was necessary to exclude any reasonable alternative site which would not be similarly inappropriate. In the present case, there was no doubt that there was local need for school places and the proposed school would assist in meeting that need; that consideration could not be regarded as unreasonable. It would only be appropriate to grant relief where the officer’s report had misled the local authority and it was important to remember that the local authority was exercising a judgment; it was entitled to form its own view, provided that it was properly informed, as to whether there were very special circumstances to justify planning permission being granted in the MOL. Once one accepted that the defendants were acting reasonably in taking the view that one site, or at least a physical connection between two separate sites, was necessary, and recognised that no reasonable alternative was available to achieve it, the argument based upon the alleged failures in the site assessment fell away. It was not appropriate or possible for the court to go into the detail of the rejection of some sites. The claimant was arguing on the facts and not identifying any error of law. None of the matters raised by the claimant showed that there was any unlawful approach in the officer’s report: The Governing Body of Langley Park School for Girls v Bromley London Borough Council [2009] EWCA Civ 734; [2009] PLSCS 246 applied.
(2) The NPPF was not intended to be a rigid document and a failure to comply with the words of any particular paragraph would not be fatal to an application for planning permission. It was necessary to bear in mind the general framework, the general approach and to consider the individual circumstances of any particular case in deciding whether a particular development was appropriate or not. The claimant’s approach to the consideration of the NPPF requirements was not appropriate. To adopt a view that if a provision was not met to the letter it meant that the development could not go ahead was to elevate the NPPF to a status which it was not intended to bear. Any apparent prohibitions within it had to be given weight, but if the facts of an individual case were such that it was appropriate to attach less weight to one particular aspect then that was an entirely lawful approach. Accordingly, the paragraph 74 point was unarguable.
Celina Colquhoun and James Corbet Burcher (instructed by Irwin Mitchell LLP) appeared for the claimant; Richard Harwood QC (instructed by HB Public Law) appeared for the defendants; Richard Honey (instructed by the Government Legal Department) appeared for the second interested party; Richard Turney (instructed by Trowers & Hamlins LLP) appeared for the third interested party; The first interested part did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: Stryjak v Hounslow London Borough Council Council
