Khan, R (On the Application Of) v London Borough of Sutton

A planning policy must be construed by reference to its operative wording. Supporting text may assist interpretation but cannot add an independent policy requirement or override the policy itself. A planning authority’s assessment of an officer’s report is read as a whole and in context, without imposing an unduly demanding standard on reports prepared for informed elected decision-makers. Inappropriate development in Metropolitan Open Land requires cumulative harm, including harm arising from inappropriateness and any other harm, to be clearly outweighed by other considerations. Whether circumstances are “very special” is a qualitative planning judgment. An environmental statement need include only information reasonably required to assess likely environmental effects and reasonably capable of being compiled. Where future infrastructure is speculative and its users and route are unknown, further environmental information may reasonably be unnecessary.

The claimant sought judicial review of the London Borough of Sutton’s decision to grant planning permission for an energy recovery facility and associated works at the Beddington Farmlands Waste Management Facility. The site was within Metropolitan Open Land and the proposed Wandle Valley Regional Park. The claimant challenged the decision on four grounds:

1. misinterpretation of Policy WP3 of the South London Waste Plan;
2. failure to assess harm and identify sufficient very special circumstances;
3. fettering of the council’s planning discretion through its waste-disposal and procurement functions; and
4. failure to assess the environmental effects of proposed combined heat and power pipelines beyond the site boundary.

Permission to bring the claim had been granted by Collins J. The central issues were whether the council had misunderstood its development plan, adopted an unlawful approach to Metropolitan Open Land, fettered its statutory discretion, or acted unlawfully under the environmental impact assessment regime.

1. Policy WP3. Policy WP3 safeguarded listed existing waste sites for their current use or conversion to waste management during the South London Waste Plan period, and encouraged them to maximise their waste potential subject to other relevant policies. It did not safeguard the Beddington site beyond the plan period. The schedule footnote drew attention to the temporary permissions and required consideration of the wider development plan; it did not itself constitute an additional policy requirement. R (on the application of Cherkley Campaign) v Mole Valley District Council [2014] EWCA Civ 567 was applicable. The officer’s report, read fairly and as a whole, adequately considered the post-2023 baseline and the effect on open land and the Regional Park.
2. Metropolitan Open Land. The report identified both the harm arising from inappropriate development and the additional harm to openness, landscape, the Regional Park and the MOL. Following Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386, the cumulative harm had to be clearly outweighed by other considerations. That exercise had been undertaken. Whether factors amounted to very special circumstances was a qualitative planning judgment, not a requirement that each factor be rare. The evidence rationally supported the conclusions on urgent waste-diversion need and the absence of suitable alternative sites.
3. Fettering. The council’s dual role as planning authority and waste-disposal authority was imposed by statute. Separate decision-making arrangements, contractual safeguards and the absence of evidence of predetermination showed that the planning discretion had not been fettered.
4. Environmental information. The proposed off-site CHP network had no confirmed users, agreement or route. It was therefore reasonable to conclude that further information could not presently be compiled or assessed. Any later pipeline proposal could be assessed in its own application. The claim was dismissed.