R Amanda Boot v Elmbridge Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 16 January 2017 |
| Neutral Citation | [2017] EWHC 12 (Admin) |
| Docket Number | Case No: CO/1265/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 January 2017 |
[2017] EWHC 12 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/1265/2016
Andrew Parkinson (instructed by Richard Buxton Env. & Public Law) for the Claimant
Neil Cameron QC and Zack Simons (instructed by Elmbridge BC) for the Defendant
Hearing date: 6 December 2016
Approved Judgment
Introduction
The Claimant seeks to quash the decision of the Defendant, Elmbridge Borough Council, to grant planning permission for a new football and athletics facility in Walton-on-Thames in Surrey ("the Site").
I granted permission at an oral hearing on 25 May 2016.
Factual Background
The Site is a 14 hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt, adjacent to the river Thames.
On 5 March 2015 the Council applied for planning permission for the following development on the Site:
"Development comprising new football and athletics stadium with spectator seating and detached two-storey building incorporating changing facilities, storage, function and club rooms; floodlighting, additional football and sports pitches, new car park and access road, hard and soft landscaping, dog walking area, playground and new electric sub-station following demolition of existing football club and facilities."
The purpose of the planning application was to construct the "Waterside Drive Sports Hub". This is intended to provide a shared ground for Walton Casuals FC, Walton and Hersham FC and Walton Athletics Club.
As described in the planning officer's report ("the OR") to the Defendant's planning committee at para 22:
"The Sports Hub will provide a Football Association standard main pitch (which will be 3G), a further 3G synthetic turf pitch, four grass training pitches, an 8 lane athletics track to UK Athletics standards with facilities for field sports located with in-field area, a shared pavilion with spectator seating, changing facilities, storage/function/club rooms, flood lighting, new access road, parking for 265 vehicles and associated landscaping."
The proposed development would utilise land that is currently occupied by one football pitch for Walton Casuals FC, an area of informal open space and scrub land. All existing structures on the site would be demolished.
On 14 December 2015 the planning committee resolved to grant planning permission, subject to referral to the Secretary of State for Communities and Local Government and receipt of a legal agreement. Planning permission was issued on 26 January 2016.
Grounds of Challenge
Mr Andrew Parkinson, for the Claimant, advances two grounds of challenge to the decision: first, that the Defendant's planning committee erred in its interpretation of paragraph 89 of the National Planning Policy Framework ("the NPPF"); second, that the Defendant 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 Legal and Policy Framework
In considering this challenge I have had regard to the well-known principles applicable in this context summarised by Holgate J in R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) at paras 90–98. In particular I remind myself of the comment of Sullivan LJ in R (Siraj) v Kirkless MBC [2010] EWCA Civ 1286 at para 19 that:
"It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a common sense manner, bearing in mind the fact they are addressed to an informed readership, in this case the respondent's planning sub-committee."
In Oxton Farms, Samuel Smith's Old Brewery (Tadcaster) v Selby District Council [1997] WLR 1106, 106, Judge LJ stated that:
"An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
In R (Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin) at para 43, Sales J (as he then was) stated:
"The court should focus on the substance of a report of officers given in the present sort of context to see whether it has sufficiently drawn councillors' attention to the proper approach required by the law and material considerations…"
The relevant national policy framework in relation to Green Belts is in the NPPF, which provides, so far as is relevant, that:
"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
80. Green Belt serves five purposes:
• to check the unrestricted sprawl of large built-up areas;
• To prevent neighbouring towns merging into one another;
• To assist in safeguarding the countryside from encroachment;
• To preserve the setting and special character of historic towns; and
• To assist in urban regeneration, by encouraging the recycling of derelict and other urban land.
81. Once Green Belts have been defined, local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as … to provide opportunities for outdoor sport and recreation; … or to improve damaged and derelict land.
…
87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
…
• 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;
… "
Annex 1 (Implementation) to the NPPF provides, so far as is relevant:
"214. For 12 months from the day of publication, decision-takers may continue to give full weight to policies adopted since 2004 even if there is a limited degree of conflict with this Framework.
215. In other cases and following this 12-month period, due weight shall be given to relevant policies in existing plans according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."
The Defendant's development plan policy DM17 – Green Belt (Development and New Buildings) provides, so far as is material:
"b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building's function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme."
In North Wiltshire DC v Secretary of State for the Environment [1993] 65 P & CR 137, Mann LJ stated (at p.145):
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it will usually lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it would be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case?"
The Parties Submissions and Discussion
Ground 1: Error in Interpretation of Para 89 of the NPPF
The planning officer's analysis of the appropriateness and impact of the proposal on the Green Belt is dealt with at paras 80–95 of the OR.
At paras 81–82 the officer finds that the proposal accords with four of the five purposes of the Green Belt set out at para 80 of the NPPF (see para 13 above) but, in relation to the purpose of "safeguarding the countryside from encroachment", he notes that the proposed development "will give rise to limited encroachment of development into the countryside by introducing a recreational use onto part of the site which was not previously in recreational use".
At OR83–84 the officer finds that the proposal will help improve damaged land in a manner which will provide for outdoor sport and recreation, in accordance with para 81 of the NPPF.
Paras 88–90 of the OR read as follows:
"88. Para 89 of the NPPF deals with buildings rather than uses and establishes that buildings (defined by s.336 of the 1990 Act as including any structure or erection i.e. including floodlights, fencing etc.) which provide appropriate facilities for outdoor sport, outdoor recreation are...
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