Philip Addison, R (on the application of) v London Borough of Southwark & Ors

Planning officers’ reports must be read fairly and as a whole. They should not be subjected to hypercritical scrutiny. A planning authority may treat recent informal use of land as a material planning consideration without applying policies directed to a different planning designation.

For the public sector equality duty, the court examines substance rather than form. The authority must make inquiries whose intensity is reasonable in the circumstances and must understand the relevant impacts and mitigation. An express reference to every protected characteristic is unnecessary where the decision-making process, read as a whole, demonstrates due regard.

The claimant sought judicial review of the Council’s decision to grant planning permission for redevelopment of a football stadium and adjoining artificial pitch at Greendale, East Dulwich.

The claim alleged a mistake of fact concerning open-space deficiency, failure to apply policies concerning Other Open Space, play and informal recreation, and breach of the public sector equality duty. The claimant also argued that relief should not be refused under Senior Courts Act 1981, section 31(2A).

1. Ground 1 dismissed. The officers’ report had to be read fairly and as a whole. The reference to an area without open-space deficiency was not a reference to the fixed sub-areas in the Council’s Open Space Strategy. It referred to accessible open space in the vicinity of the site. The Council made no mistake of fact.
2. Ground 2 dismissed. Southwark Plan Policy 3.27 did not apply to the artificial pitch because it was designated Metropolitan Open Land, not Other Open Space. In any event, the policy’s proviso concerning park deficiency was directed to parks with unrestricted access and was not engaged by the existing football pitch.
3. Ground 3 dismissed. The Council considered the informal recreational use of the pitch as an other material planning consideration. It applied London Plan Policy 3.6 to play provision for the new residents and considered London Plan Policy 3.19, including the presumption against loss of sports and recreation facilities. The planning judgment that improved replacement facilities, a kickabout space and secured community use arrangements substantially complied with the policy was lawful. Strategic Policy 11 did not create an additional development-control test beyond the protection of Metropolitan Open Land.
4. Ground 4 dismissed. The Council had due regard to equality impacts in substance. The inquiry was not so inadequate that no reasonable authority could regard the available material as sufficient. The consultation evidence identified the users and impacts, including impacts on BAME users, and the Council secured practical mitigation through the replacement facilities and community use agreement. An express reference to race in the principal report was unnecessary in the circumstances.
5. Even if there had been a defect in the PSED assessment, relief would have been refused under section 31(2A) of the Senior Courts Act 1981, because it was highly likely that the outcome would not have been substantially different.

The claim was dismissed.