R (on the application of John Catt) v Brighton & Hove City Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Lindblom
Judgment Date23 April 2013
Neutral Citation[2013] EWHC 977 (Admin)
Docket NumberCase No: CO/9903/2011

[2013] EWHC 977 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Lindblom

Case No: CO/9903/2011


R (on the application of John Catt)
Brighton & Hove City Council

William Upton (instructed by Richard Buxton Environmental & Public Law) for the Claimant

Harriet Townsend (instructed by Brighton & Hove City Council) for the Defendant

Mr Justice Lindblom



These two claims for judicial review raise related issues on the screening of development proposals under the regulations governing environmental impact assessment ("EIA"). Together they seek orders to quash three grants of planning permission by the defendant, Brighton & Hove City Council ("the City Council"), for development on the site of the Withdean Stadium at Tongdean Lane in Brighton, once the temporary home of Brighton and Hove Albion Football Club. The first planning permission was granted on 8 August 2011, the second and third on 21 December 2012. The claimant lives in Shepherds Croft, a street next to the site on its western side. He objected to these proposals, as he had to previous schemes of development on the site. In both of these claims he alleges shortcomings in screening, which, he says, vitiate the permissions the City Council has granted. His counsel, Mr William Upton, said the "crux of this case" is that the City Council has consistently misled itself in considering whether the proposals were for EIA development.


The first claim has permission to proceed, which I granted on the papers on 24 February 2011. The second does not have permission. On 6 February 2013 Ms Geraldine Andrews Q.C., sitting as a deputy judge of the High Court, ordered that it be listed for a "rolled-up" hearing on the date already fixed for the hearing of the first claim.


The site


The stadium site is owned by the City Council. It extends to about six hectares, and lies in a residential area in the northern part of Brighton, close to the A23 London Road. To the west and north it is abutted by housing. To the south is the Withdean Woods Local Nature Reserve.


Inside the stadium is a football pitch, surrounded by a running track, with floodlights on columns 30 metres high. Once there were four stands: a permanent one on the north side of the pitch, and three temporary ones to the east, south and west. Turnstiles were put up at both the north-eastern and north-western ends of the site. At the western end of the site a sports hall and temporary buildings that provided facilities for football supporters were erected. The north-western part of the site was used as a car park. In the middle of the site there is a public house. And in the north-eastern part of it there is a "Park and Ride" car park.


The site has a long planning history. It was first developed as an arena for athletics in 1955. Since the late 1990's several applications for planning permission have been granted, including proposals to increase the capacity of the stadium. Two of those permissions, granted in 2002 and 2004, were quashed in proceedings brought by the claimant. Another, granted in July 2005, withstood his challenge both in the High Court and in the Court of Appeal (see [2006] EWHC 1337 (Admin) and [2007] EWCA Civ 298). Yet another, granted by the City Council in June 2008, survived attack in a further claim for judicial review, again made by the claimant (see [2009] EWHC 1639 (Admin) and [2009] EWCA Civ 1417).


Between 1998 and 2011 the stadium was used by Brighton and Hove Albion Football Club for its first team matches. For the start of the 2011/2012 season the club moved to a new ground at Falmer. However, its reserves and its women's team still play in the stadium. Other sports clubs — including some local football and athletics clubs and the Brighton and Hove Squash Club — are still using the site. By mid-2011 much of the temporary development on the site was being taken down and removed. Some of it, however, remained, including the west stand and the turnstiles. So did the car park at the north-western end of the site.

The July 2005 planning permission


On 20 July 2005 the City Council granted planning permission for development including the erection of "new stands and the extension of existing stands to provide an additional 1,966 seats". This would have increased the capacity of the stadium to 9,002. In fact, the number of extra seats installed was not 1,966 but 1,816, bringing the total to 8,852. The continued use of the stadium and the retention of the temporary buildings on the site were permitted until 30 June 2008.

The June 2008 planning permission


In June 2008 the City Council granted planning permission for the use of the stadium to be continued until 30 June 2011, the temporary facilities already on the site to be retained, and three of the conditions attached to the planning permission granted in 2005 to be varied. Condition 1 on the 2008 permission required the removal from the site, by 30 June 2011, of "[the] temporary West Stand, South Stand, North East Stand and East Stand seating terraces, temporary two storey hospitality building and other Portacabins (excluding the athletics pavilion), turnstiles …", and the land to be reinstated to its former condition by 30 September 2011. Condition 2 required the use of the site for Brighton and Hove Albion Football Club's first team matches to cease on or before 30 June 2011. Condition 3 required that, by 30 June 2011 or — if sooner — the day on which the playing of matches in the stadium ceased, the car park at the north-west corner of the stadium was to be removed and the land restored to grass.

The March 2005 and December 2007 screening opinions


The July 2005 and June 2008 planning permissions were both granted after the City Council had adopted screening opinions, in March 2005 and December 2007. In each of those screening opinions the City Council concluded that the development proposed was not likely to give rise to significant environmental effects and therefore did not require EIA.

The noise abatement notice


In July 2008 the City Council issued a noise abatement notice to deal with "noise arising from amplified voices and amplified music from the aerobics studio".

The City Council's "Masterplan"


On 17 March 2011 the City Council's Cabinet approved "the development of capital investment proposals" for "the Withdean Stadium Complex". The Cabinet had received a report from the City Council's Strategic Director, Communities. This referred to "indicative proposals for investment" (paragraph 3.2), involving "the construction of a two storey extension which wraps around the front and side of the existing building" (paragraph 3.3). It was reported (in paragraph 4.1) that "[some] initial pre-application comments have been received from the Planning Section" and that "the Withdean proposal is described as a strong proposal which deals with the poor legibility and permeability of the existing racket sport and fitness buildings".


On 29 September 2011 the Strategic Director, Communities presented a report to the City Council's Culture, Tourism & Enterprise Overview and Scrutiny Committee. The purpose of this report, according to the minutes of the committee meeting, was "to get some early feedback on Members' views on the future of the [Withdean] stadium". The possibility of replacing the athletics track was discussed. Officers were said to be "very keen to seek [members'] views in order to proceed with the development of the Masterplan, which was part of the citywide Sports Facilities Plan". The minutes record that it "was agreed that Members should consider the questions posed in the report and feed back any comments to Officers".


The report for that meeting advised the members that the options for the "Withdean Sports Complex" needed to be considered "within the overall context of sports facilities across the city" (paragraph 3.3). The site was "large and could be considered as a potential site for future developments, depending on what conclusions are reached in the [City Council's] Sports Facilities Plan" (ibid). The site was "listed in the [City Council's] Core Strategy as one of the city's major sporting venues", one of six sports facilities operated under contract by Freedom Leisure for the City Council (paragraph 3.5). Various ideas for the future use and development of the stadium site were outlined. It was noted that the athletics track would require to be replaced "over the next few years at a cost of approximately £500,000", an investment that would "secure the stadium's future as a regional standard athletics venue" (paragraph 3.17). Officers were said to be "assessing the feasibility of a capital investment proposal to increase the health and fitness provision" on the site (paragraph 3.19). Work would continue on the Sports Facilities Plan "to help identify priorities and inform potential options for [the stadium site]" (paragraph 3.22). A number of questions were posed, to help in deciding what role the site should play in the future (paragraph 3.23).


On 19 April 2012 the City Council's Cabinet received a further report from the Strategic Director, Communities. This referred to "proposals for improving sports facilities at Withdean Sports Complex as per the recommendations identified in the [City Council's] citywide Sports Facilities Plan 2012-22" (paragraph 1.1). The Cabinet was invited to agree "to undertake Phase 1 which is the investment proposal to increase the health and fitness facilities at Withdean Sports...

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