The King on the Application of Philip Addison v Ondon Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 15 December 2022 |
| Neutral Citation | [2022] EWHC 3211 (Admin) |
| Docket Number | Case No: CO/1173/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3211 (Admin)
THE HONOURABLE Mr Justice Saini
Case No: CO/1173/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ruchi Parekh (instructed by Public Access) for the Claimant
Richard Moules (instructed by London Borough of Southwark) for the Defendant
Andrew Byass (instructed by Mishcon de Reya LLP) for the Third Interested Party
Hearing date: 6 December 2022
Approved Judgment
This judgment is in 7 main parts as follows:
| I. | Overview: | paras [1]–[5] |
| II. | Legal Principles: | paras [6]–[11] |
| III. | Factual Background and the Reports: | paras [12]–[22] |
| IV. | Ground 1: mistake of fact: | paras [23]–[36] |
| V. | Ground 2: failure to apply policies on Other Open Space: | paras [37]–[39] |
| VI. | Ground 3: failure to apply policies on play and informal recreation: | paras [40]–[54] |
| VII. | Ground 4: failure to discharge the public sector equality duty: | paras [55]–[69]. |
I. Overview
The Claimant challenges the decision of the Defendant, the London Borough of Southwark (“the Council”) dated 21 February 2022 to grant planning permission for the redevelopment of the Champion Hill Stadium and the neighbouring Astroturf pitch at Greendale, both in the area of East Dulwich, London. The Stadium is the ground of Dulwich Hamlet Football Club (“DHFC”) which plays in the National League South.
The focus of the claim for judicial review is the legality of the Council's approach to the Astroturf pitch, and proposed replacement of it as part of re-provisioning of sports and recreation facilities. The Astroturf pitch, although in a state of some disrepair, is currently used extensively for various recreational purposes. It has only been freely accessible to the public since 2018 but was a real asset for the local community as free and open recreational space during the COVID Pandemic. Under the planning permission, DHFC's current football pitch will be moved onto the Astroturf pitch and the public will be provided with a smaller artificial pitch and a multi-functional kickabout space. There was a substantial consultation exercise undertaken by the Council and a large number of objections were received relating to the impact of the proposal on open spaces and the loss of the Astroturf.
The First Interested Party (“IP1”) is the freeholder of the land on which the existing stadium and an adjacent car park are situated. The Second Interested Party (“IP2”) is the football club, DHFC, that leases those facilities from IP1. The Council is the freeholder of the land on which the Astroturf is situated. The Third Interested Party (“IP3”) is the development manager of IP1. IP2 and IP3 were the joint applicants for the relevant planning permission. I will refer to the Council and IP3 collectively below as “the Respondents”. Counsel for IP3 adopted the submissions of Counsel for the Council, and in their skeleton arguments they each make submissions in common, in opposing the claim.
There are 4 issues raised by the pleaded claim:
(i) Did the Council make a mistake of fact in relation to open space deficiency?
(ii) Did the Council fail properly to apply Policy 3.27 of the Southwark Plan (2007)?
(iii) Did the Council consider compliance with London Plan Policy 3.6, London Plan Policy 3.19, and Strategic Policy 11 of the 2011 Core Strategy?
(iv) Has the Council breached the Public Sector Equality Duty (“PSED”)?
In addition, there is an issue as to whether the Court should refuse relief pursuant to s.31(2A) of the Senior Courts Act 1981 (“the SCA 1981”), if the Claimant succeeds on the PSED ground. Although Counsel for the Claimant took the 4 issues in a different order in her oral submissions, I will adopt the above order below.
II. Legal Principles
Although there were differences of emphasis, there was ultimately no identifiable dispute as to the law in relation to each of the 4 grounds of challenge. I was taken to the principles which apply in challenges to decisions of local planning authorities to grant planning permission as set out by Holgate J in R (Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin) at [10]–[11]. In particular, it is well-established in the planning context that reports should be read as a whole and fairly, without being subjected to the examination which may be applied to the interpretation of a statute or a contract. Additionally, in construing reports, it has to be borne in mind that they are addressed to a “knowledgeable readership”, including council members “who, by virtue of that membership, may be expected to have a substantial local and background knowledge”. To the same effect in Mansell v Tonbridge and Malling BC [2018] P.T.S.R. 1452 at [41] it was emphasised that officers’ reports should not be subjected to ‘hypercritical’ scrutiny by the courts.
A mistake of fact can give rise to a separate head of challenge in the planning context as in conventional public law: Watt v LB Hackney [2016] EWHC 1978 (Admin); [2017] JPL 192, applying E v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 (CA).
Where a ground of challenge is that a planning authority failed in its duty to make sufficient inquiry, the question to be asked is whether the inquiry made by the planning authority was so inadequate that no reasonable planning authority could suppose that it had sufficient material available upon which to make its decision: R (Hayes) v Wychavon DC [2014] EWHC 1987 (Admin); [2019] PTSR 1163 at [31]. That principle applies both in the general planning context and in respect of a complaint, in relation to the PSED, to the effect the public authority failed to make sufficient inquiries.
Section 149 of the Equality Act 2010 (“EA 2010”) imposes the public sector equality duty (“PSED”) in the following terms:
“149. Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) […]
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”
The relevant protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation: s.149(7) EA 2010. As to challenges based on breach of the PSED, the general principles are well-established: R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [25]. In Powell v Dacorum Borough Council [2019] HLR 1, by reference to Bracking, the court underlined the context-specific nature of the PSED. There is not a one size fits all approach and matters of substance and not form are to be the focus of any consideration of the legality of a public authority's compliance with the PSED.
Finally, Section 31(2A)(a) SCA 1981 provides that the High Court must refuse to grant relief on an application for judicial review “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. In Gathercole v Suffolk CC [2021] P.T.S.R. 359, the Court of Appeal explained that s.31(2A) SCA 1981 was intended to ensure that even if there had been some flaw in the decision-making process which might render the decision unlawful, the decision must not be quashed if other circumstances meant that quashing it would be a waste of time and public money because it was highly likely that the same decision would have been made without the error. It underlined that it was important that a Court faced with an application for judicial review did not shirk from fulfilling the obligation imposed by s.31(2A).
III. Factual background and the Reports
At present the application site comprises:
(i) Champion Hill Stadium which consists of a main stand and smaller covered stand with capacity for 3,000 spectators, plus a clubhouse containing a gym, squash courts and function room;
(ii) the current football pitch of Dulwich Hamlet FC which (unlike the stands) is on land designated as Other Open Space (“OOS”) in the Southwark Plan (2007);
(iii) Greendale artificial pitch (the Astroturf pitch, referred to above) which is on land designated as Metropolitan Open Land (“MOL”), and not OOS.
As I have noted above, the Astroturf was not originally formally open for public access, but in 2018 the Council unlocked the gates. The Astroturf is in a poor state for repair, unsuitable for formal sports, but is available (with warning notices in place) for informal play and recreation. The Astroturf had been used previously for club...
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