Langley Park School for Girls v London Borough of Bromley & Anor

In planning decisions involving development on protected open land, an alternative siting within the application site may be a material consideration. No exceptional circumstances are required merely because the alternative is within the same site rather than on a different site. Relevance and weight depend principally on the planning harm caused by the proposal, including conflict with policy. Where there are clear planning objections, it may be necessary to consider whether an alternative would avoid or reduce that harm. The local authority must make that judgment itself and must be properly directed in law. A report that identifies harm to openness as a main issue but does not assess it, and advises members that an alternative cannot form part of the application’s merits simply because it was not included in the application, is legally inadequate.

The Governing Body of Langley Park School for Girls challenged planning permission granted by the London Borough of Bromley to the Governing Body of Langley Park School for Boys for redevelopment of the Boys’ School site, which was designated Metropolitan Open Land. The challenge concerned the siting of substantial new school buildings partly on open land.

The Administrative Court, Wyn Williams J, refused permission on one ground and granted permission but dismissed the challenge on the ground concerning an alternative siting known as Option 1: [2009] EWHC 324 (Admin). Permission to appeal was granted only on that ground. The central issue was whether the planning authority unlawfully failed to assess the proposal’s impact on the openness and visual amenity of the Metropolitan Open Land and to consider whether an alternative siting within the application site would reduce that harm.

1. Appeal allowed; planning permission quashed. The authority’s report was legally inadequate. Although it identified the impact on the openness of the Metropolitan Open Land as a main issue, it did not assess the extent of the injury or express any conclusion about it.
2. The proposed alternative was not an alternative-site objection. It concerned a different siting within the same application site. In light of Policy G2, the suggested siting was capable of being a material consideration, and no exceptional circumstances were needed before it could be considered. The alternative-site authorities, including R (Scott) v North Warwickshire Borough Council [2001] EWCA Civ 315 and Kilmartin Properties (TW) Ltd v Tunbridge Wells Borough Council [2003] EWHC 3137 (Admin), did not govern this different situation.
3. Under section 38(6) of the Planning and Compensation Act 2004, the authority had to determine the application in accordance with the development plan unless material considerations indicated otherwise. The principle in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 239 applied with equal, or greater, force to an alternative siting within the application site. Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346 was explained as context-specific and did not establish a one-size-fits-all rule.
4. The relevance and weight of an alternative were matters of planning judgment, subject to review on Wednesbury grounds. Relevant factors included the nature and degree of planning harm, the nature and urgency of the need, the scope for alternatives capable of meeting it, and the demonstrated feasibility of those alternatives. The list was not exhaustive.
5. The members had been told, in substance, that Option 1 could be ignored because it was not part of the application. They had not first assessed the application’s impact on openness or considered whether a less harmful siting could meet the educational need. Alleged impracticability could not justify withholding relief because it had not been the basis of the authority’s decision. Prejudice caused by a prompt challenge, without undue delay, was also insufficient reason to refuse relief.

The planning permission was quashed.

• Court of Appeal (Civil Division): Appeal allowed and the planning permission quashed.
• Administrative Court: Wyn Williams J refused permission on the first ground and granted permission on the second, but dismissed the judicial review claim: [2009] EWHC 324 (Admin).
• Permission to appeal: Dyson LJ granted permission on the alternative-siting ground and refused permission on the first ground. The first ground was not renewed.