In R (Boot) v Elmbridge BC [2017] EWHC 12 (Admin) Amanda Boot sought to quash the Council’s decision to grant planning permission for a new football and athletics facility in Walton-on-Thames in Surrey (“the Site”).  The Site is a 14 hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt, adjacent to the river Thames. 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. 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.

Two grounds of challenge were advanced: that the Council’s Planning Committee had erred in its interpretation of paragraph 89 of the NPPF; and that the Council had failed to have regard to a material consideration. Supperstone J rejected the latter challenge. However, he upheld the former.  Paragraph 89 provides that a LPA should regard the construction of new buildings as inappropriate in the Green Belt save for the provision of appropriate facilities for outdoor sport and outdoor recreation, “as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”.

The Claimant contended that the question of law raised by her first ground of challenge was whether a new sports facility could be appropriate development even if it caused harm to the openness and purposes of the Green Belt. This was suggested because the Council found that the new stadium would cause harm to the openness and purposes of the Green Belt, but (despite this) found it was appropriate development and complied with paragraph 89 of the NPPF. The Claimant submitted that the Council’s interpretation of the policy was wrong. Her Counsel contended that if a new sports facility caused harm to the openness of the Green Belt (even limited harm) it was not appropriate development.  He submitted that if a proposal has an adverse impact on openness, the inevitable conclusion is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Council concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paragraphs 87 and 88 of the NPPF there were very special circumstances that would justify it. Supperstone J accepted these submissions.  In his judgment the Council erred in its interpretation of paragraph 89 of the NPPF.

When a local planning policy obliges a developer to provide an element of affordable housing on sites in excess of stated thresholds, an issue may arise as to whether to aggregate two (or more) sites or whether two (or more) sites should be treated as forming part of a larger whole. Absent a definition of sites, the determination of such an issue relates to the application rather than the interpretation of policy, is a matter of planning judgment, and is challengeable only if irrelevant factors are taken into account or if an obviously relevant consideration is not taken into account or if the judgment is otherwise irrational: New Dawn Homes Ltd v SoS for CLG and Tewkesbury Borough Council [2016] EWHC 3314 (Admin), considering the Brandlord case.