R (oao Matthew Davison) v Elmbridge Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 02 May 2019 |
| Neutral Citation | [2019] EWHC 1409 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2737/2017 |
| Date | 02 May 2019 |
[2019] EWHC 1409 (Admin)
THE HON. Mrs Justice Thornton
Case No: CO/2737/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Parkinson (instructed by Richard Buxton Solicitors) for the Claimant
Mr Zack Simons (instructed by Head of Legal Services Elmbridge Borough Council) for the Defendant
Introduction
The Claimant seeks to quash the decision of Elmbridge Borough Council (“the Council”), dated 26 April 2017, to grant planning permission for a new football and athletic Stadium and associated development, located in the metropolitan Green Belt at Walton on Thames in Surrey. The development is now constructed and has been operational since 14 September 2017.
This is the second round of litigation in respect of the project. In January 2017 Mr Justice Supperstone quashed an earlier planning permission for the development (( R(Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin)), on grounds that the Council erred in its interpretation of paragraph 89 of the National Planning Policy Framework (NPPF) in finding that the sports facility was approved development despite it causing harm to the openness and purpose of the Green Belt.
There is one ground of challenge before this Court. The Claimant contends that the Council contravened the principle of consistency in decision-making in departing, without reasons, from its previous finding that the proposed development would have an adverse impact on the openness of the Green Belt to deciding that it would not have an adverse effect. The Council contends that it was not required to consider its previous planning judgment, because the decision in question had been quashed by the Court in R(Boot) v Elmbridge BC.
Accordingly, the issue for this Court is the application of the principle of consistency of decision making in planning law to a second round of decision making following the quashing of a previous decision.
Background Facts
The site in question is 14.2 ha. It is owned by the Council and is located within the metropolitan Green Belt. As well as being the site owner, the Council is the local planning authority.
The Claimant, Mr Davison, is the joint owner of the Weir Hotel and Restaurant which is located adjacent to the site.
On 5 March 2015, the Council applied for planning permission for a new football and athletics stadium with associated development. The development was considered likely to have significant effects on the environment and was therefore subject to the legal regime for assessing the environmental impacts of development (set out then in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (2011/1824) (“the EIA Regulations”).
On 4 June 2015, the planning officer published his report on the application (“OR1”).
The Council's Planning Committee resolved to grant planning permission on 14 December 2015. The planning permission was issued on 26 January 2016 (“Permission 1”). Pursuant to Regulation 24 of the EIA Regulations the Council published its reasons for deciding to grant permission.
On 8 March 2016 a local resident, Miss Amanda Boot applied to judicially review the 2016 permission.
On 14 October 2016, the Council submitted a further planning application to develop the site for a football and athletics stadium. It is common ground that the differences between the two schemes are minor.
On 11 January 2017 the planning officer published his report on the second planning application (“OR2”).
On 16 January 2017, the High Court quashed Permission 1 ( R(Boot) v Elmbridge Borough Council [2017] EWHC 12).
The day after, on 17 January 2017, the Council's planning committee met to determine the second planning application. Members were provided with an update report from the Planning Officer addressing the implications of the Court's judgment. The Committee resolved to grant permission. The planning permission was issued on 26 April 2017 (“Permission 2”).
Proceedings were issued on behalf of the Claimant and permission to apply for judicial review was granted on 8 September 2017.
The 2015 Planning Officer's report (Permission 1) – 4 June 2015
The Planning Officer's report, dated 4 June 2015, outlines the proposal as comprising a new football and athletic Stadium with associated development. The proposed pavilion will be in the middle of the site and will be 56 m in length and 29 m in width with a height of 8.7 m. It will be 2 stories high. The pavilion will have raked seating on 2 sides and comprise 636 seats with half facing the athletics track and half facing the main football pitch.
The impact of the development on the surrounding Green Belt was considered at paragraphs 80 to 95 of the report. In particular, paragraphs 90 to 95 address the impact of the pavilion on the openness of the Green Belt as follows:
“90 the physical size of the proposed pavilion compared to the existing buildings means that it would have a greater impact on the openness of the greenbelt compared to the existing buildings. While it may be appropriate development an assessment must be made in terms of whether the proposal preserves the openness of the Belt. The proposed landscaping in the amended scheme involves the creation of a series of landforms around the perimeter of the site to enhance the character of the informal open space and will assist in screening activity within the site from certain viewpoints. Whilst there would be a larger area of formal enclosed sports facilities it is not considered that the impact on the openness of the Green Belt would be significant.
91 the existing buildings … are of poor quality and are no longer considered to be fit for purpose. All are close to the northern boundary, approximately 33–50m from the River Thames…
The buildings, including those removed, had a combined footprint of 785sqm, volume of 2100m 3 an average height of approximately 2.7 m. The proposed pavilion has a gross external area, excluding seating, of 1674sqm and will be 56m in length and 29m in width with a height of 8.7m. However, it will be located within the centre of the site. In the amended scheme the landscape buffer has been increased in width to move the pitches and athletics ground further from the river.
…
94 The proposed pavilion is significantly smaller in scale than the outline permission has been granted under 2012/1185 and therefore it is considered that the proposal would have less impact on the openness of the Green Belt than the previous.
95 Taking Green Belt policy as a whole the proposals comprise development which is appropriate within the Green Belt. There will be limited adverse impact on landscape and visual amenity and openness of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving the damage land.”
The EIA Statement of Reasons for granting permission (“Permission 1”) – undated but early 2016
The statement of reasons required pursuant to the EIA regime provides as follows:
“The building comprise development which is appropriate within the Green Belt in line with para. 89 and 90 the NPPF…. The function of the pavilion will be ancillary and appropriate to the use of the site football and athletics. There will be a limited adverse impact on landscape and visual amenity and openness of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damage land which supported by para. 81 of the NPPF.
…
It is concluded that the proposal represents appropriate development within the Green Belt the proposal is not considered to have a significant adverse impact on the openness of the Green Belt or the amenity of nearby properties.”
The 2017 Planning Officer's report (Permission 2) – 12 January 2017
The report, dated 12 January 2017, compiled by the planning officer recommends the grant of planning permission. It acknowledges the ongoing judicial review challenge to the earlier planning permission.
Paragraphs 86 – 113 consider whether the proposed development would represent inappropriate development in the Green Belt under the NPPF. The following key paragraphs record the Officer's conclusions on the impact on green belt openness:
“105 The physical size of the proposed pavilion compared to the previous buildings mean that its size, height, bulk and mass is greater than the previous buildings. The buildings, including those removed had a combined footprint 785sqm, volume of 2100m 3 and average height of approximately 2.7m. The proposed pavilion has a gross external area, excluding seating of 1674sqm and will be 56m in length and 29m in width with a height of 8.7m. The site of siting of the pavilion away from the river reduces the prominence of the main built development on the site. It would be located within the centre of the site whereas the previous buildings were near the north-western boundary visible from the road and the River Thames towpath. The purpose of the building is clearly ancillary to outdoor sport and therefore the building would be associated with the outdoor use. On balance, it is considered that the pavilion would preserve the openness of the Green Belt.
106 The proposed landscaping involves the creation of a series of landforms around the perimeter of such a site to enhance the character of the informal open space will assist in screening activity within the site from...
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