Brown v London Borough of Ealing & Anor

When inappropriate development is proposed in Metropolitan Open Land, the decision-maker must identify harm to the land, including harm arising from inappropriateness, and any residual non-Metropolitan Open Land planning harm. Those harms must be weighed against the benefits relied upon to establish very special circumstances. Harm already balanced and found to leave no residual planning harm need not be counted again. A planning committee report is read fairly and as a whole, in its practical context. Judicial review requires significant misleading of the committee, not merely an arguable alternative reading. A policy protecting designated open space does not apply to land lacking the relevant designation.

The claimant sought judicial review of planning permission granted by the defendant to the interested party for redevelopment of Warren Farm as a football training and community sports facility. The site was designated Metropolitan Open Land and Community Open Space. Permission to apply was granted on one ground. The claimant later sought to add a challenge based on London Plan policy 7.18 concerning protected open space.

The central issues were whether the planning committee had been materially misdirected about the assessment of non-Metropolitan Open Land harm when applying the very special circumstances test, and whether policy 7.18 applied because the site formed part of the Brent River Park.

1. Ground 1 dismissed. A committee report must be read fairly, as a whole and in context. A claimant must show that the members were significantly misled by the report. Where members accept an officer’s recommendation, it is ordinarily reasonable to infer that they adopted the officer’s reasoning and findings unless the minutes indicate otherwise. This approach was supported by Oxton Farms v Selby District Council [1997] EWCA Civ 4004.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision had to accord with the development plan unless material considerations indicated otherwise. Metropolitan Open Land received the same level of protection as Green Belt. The Green Belt policy in paragraphs 79–92 of the National Planning Policy Framework therefore applied, as explained in R (on the application of Lensbury Limited) v Richmond Upon Thames LBC [2016] EWCA Civ 814, [2017] JPL 96.
3. The correct paragraph 88 exercise was to identify harm to the Metropolitan Open Land, including harm by reason of inappropriateness, and then add any residual non-Metropolitan Open Land planning harm. Those matters had to be weighed against the benefits relied upon to establish very special circumstances. The Court of Appeal’s decision in Redhill Aerodrome Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386, [2015] PTSR 274 supplied the applicable interpretation. The earlier first-instance decision, Redhill Aerodrome Limited v Secretary of State for Communities and Local Government [2014] EWHC 2476, was not applied.
4. The officers had balanced the matters relied upon by the claimant. Public access, noise, lighting and floodlighting did not leave residual planning harm requiring separate inclusion in the Metropolitan Open Land balance. The committee report therefore did not misinterpret or misapply paragraph 88.
5. Ground 2 refused permission. The amendment was exceptionally permitted because it caused no prejudice, but that did not justify late amendments generally. Policy 7.18 applied only to protected open space subject to local designation under that policy. Warren Farm was not so designated. Its designation as Community Open Space did not trigger policy 7.18, and its inclusion within Metropolitan Open Land was governed by policy 7.17.
6. The claim was dismissed.

The judgment records that an earlier challenge concerning a previous Warren Farm permission was refused after oral renewal on 13 May 2014. No appeal from the present decision is stated.