Boot, R (On the Application Of) v Elmbridge Borough Council

Under paragraph 89 of the National Planning Policy Framework, the outdoor-sport exception applies only where development preserves Green Belt openness and does not conflict with Green Belt purposes. A finding of limited adverse impact does not establish that openness has been preserved. If development is inappropriate, the decision-maker must apply the policy requiring very special circumstances. Earlier planning decisions are material considerations, but may be distinguished where material differences mean that the later decision does not necessarily agree or disagree with a critical aspect of the earlier decision.

The claimant sought judicial review of Elmbridge Borough Council’s decision to grant planning permission for a football and athletics sports hub on a former landfill site in the Green Belt.

She alleged that the council had misinterpreted paragraph 89 of the National Planning Policy Framework and had failed to consider a 2013 inspector’s decision concerning an indoor archery centre on an adjacent site.

The issues were whether the proposal could be appropriate development despite a limited adverse impact on openness, and whether the earlier appeal decision was sufficiently related to require consideration.

1. Ground 1 succeeded. Paragraph 89 of the National Planning Policy Framework requires facilities within the outdoor-sport exception to preserve Green Belt openness and avoid conflict with Green Belt purposes. The council’s finding of a limited adverse impact on openness was inconsistent with a finding that openness had been preserved.
2. The court followed West Lancashire Borough Council v SSCLG [2009] EWHC 3631 (Admin). The policy gave no latitude to treat an adverse effect on openness as immaterial merely because it was limited. The council had therefore erred by treating the development as appropriate without considering whether very special circumstances justified it under paragraphs 87 and 88.
3. R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404 did not establish that every proposal with an adverse impact on openness complies with paragraph 89. It recognised that some development is appropriate to the Green Belt as a matter of policy, but that did not resolve the present issue.
4. Ground 2 failed. The 2013 appeal decision was a material planning consideration, but the indoor archery-centre proposal was materially different. Its indoor nature was significant to the inspector’s reasoning, and the buildings also differed in dimensions and effects.
5. The claim succeeded and the planning permission was quashed.