Brown v London Borough of Ealing Council & Anor

In deciding whether very special circumstances justify inappropriate development on Metropolitan Open Land, the decision-maker must weigh all planning harm, including non-open-land harm, against all planning benefits. A factor may properly be relevant in more than one distinct planning exercise without double-counting, provided the assessment does not omit harm or benefits.

Strategic policy resisting the loss of protected open space must be read with adopted local policies giving effect to it. Correct application of those local policies will ordinarily satisfy the strategic policy. Planning officers’ reports should be read with reasonable benevolence and realism, rather than in an overly legalistic way.

Carolyn Brown sought judicial review of the London Borough of Ealing Council’s grant of planning permission to QPR Holdings Ltd for training, academy and community sports facilities at Warren Farm, designated as Metropolitan Open Land and Community Open Space.

Mr Justice Dove dismissed the claim: [2017] EWHC 467 (Admin). The appeal concerned whether the officer had unlawfully applied the very special circumstances balance for inappropriate development and whether the council had failed to account for alleged conflict with London Plan Policy 7.18. A second judicial review ground was retained for determination with the appeal.

The Court of Appeal, in the judgment of Lindblom LJ agreed by Patten LJ and Hallett LJ, dismissed the appeal and dismissed the claim on ground 2.

1. Very special circumstances. The protection given to Metropolitan Open Land under London Plan Policy 7.17 is equivalent to, and no less than, Green Belt protection. The approach in Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386 applies equally to Metropolitan Open Land: the paragraph 88 balance must include all planning harm and all planning benefits. It is unlawful to weigh only harm to the Green Belt or Metropolitan Open Land against the full range of benefits.
2. The officer’s report had to be read as a whole and with reasonable benevolence and realism, not in an overly legalistic manner. The report identified the relevant planning issues and material considerations, including public access, the condition of the facilities and the effect on openness. There was no failure under section 70(2) of the Town and Country Planning Act 1990, section 38(6) of the Planning and Compulsory Purchase Act 2004, or the Wednesbury standard.
3. There was no double-counting. The improvement of Warren Farm’s facilities could outweigh the loss of public access in one assessment and also meet an independently identified need for investment in sports facilities in the very special circumstances balance. Those were distinct and mutually consistent uses of the same planning benefit.
4. Policy 7.18. The strategic requirement to resist loss of protected open space must be read with the adopted local policies giving effect to it. Policy 5.6 of the core strategy protected and promoted Warren Farm as a key sports field while identifying it for improved facilities. Policies 2.18 and 3.19 were also correctly applied. The officer’s failure to mention Policy 7.18 in her conclusions did not invalidate the permission because its substance was lawfully applied through the relevant local policies.

• Court of Appeal (Civil Division) — Appeal dismissed; the claim on ground 2 was also dismissed: [2018] EWCA Civ 556.
• Administrative Court, Planning Court — Dove J dismissed the judicial review claim: [2017] EWHC 467 (Admin).