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

The claimant sought judicial review of the Council's decision of 21 February 2022 granting planning permission for redevelopment of Champion Hill Stadium and the adjacent Astroturf (Greendale) pitch. The central legal issues were whether the Council made a mistake of fact about open space deficiency, failed to apply or misapplied development plan policies (in particular Saved Southwark Plan Policy 3.27 and London Plan Policies 3.6 and 3.19, and Strategic Policy 11 of the Core Strategy), and whether the Council breached the public sector equality duty (s.149 Equality Act 2010). The court applied established public law and planning principles (including that officers' reports must be read fairly and without hyper‑critical scrutiny) and considered the adequacy of inquiry, the relevant policy designations (Metropolitan Open Land and Other Open Space), and the content and effect of the s.106 Community Use Agreement.

The judge rejected the claim on each ground. There was no mistake of fact: the Officer's Report fairly described local access to alternative open spaces and did not misapply the Council's Open Space Strategy. Policy 3.27 did not apply to the Astroturf because it is not designated as Other Open Space. The Council lawfully considered play and informal recreation and properly applied London Plan policies and Strategic Policy 11, concluding that superior replacement facilities and mitigation (including a Community Use Agreement) justified the grant. The PSED challenge failed because the record showed substantive consideration of impacts on protected groups (including children and BAME users) and meaningful mitigation; alternatively relief was refused under s.31(2A) Senior Courts Act 1981 as it was highly likely the outcome would not have been substantially different.

Background and parties: The claimant challenged the Council's grant of planning permission for redevelopment of Champion Hill Stadium and the adjacent Astroturf pitch in East Dulwich (the Astroturf being on Metropolitan Open Land). The first and second interested parties were the freeholder and the football club; the third was the development manager and a joint applicant. Extensive consultation and objections had been made, focusing on loss of the Astroturf and open space.

Nature of the application / relief sought: The claimant brought judicial review seeking to challenge the lawfulness of the Council's decision to grant planning permission and to quash that decision.

Issues framed by the court:

• Whether the Council made a mistake of fact regarding whether the site was in an area of open space deficiency;
• Whether the Council failed to apply Saved Southwark Plan Policy 3.27 relating to Other Open Space;
• Whether the Council failed to apply London Plan Policies 3.6 and 3.19 and Strategic Policy 11 of the Core Strategy in relation to play and informal recreation and loss of sports/recreation land;
• Whether the Council breached the public sector equality duty (s.149 Equality Act 2010).

Court's reasoning and outcome on each issue:

• Mistake of fact: The court found no mistake. The Officer's Report (OR) was to be read fairly and in context; the OR's reference to the "area" not being deficient meant that there were accessible alternative parks within walking distance. The Council's Open Space Strategy sub‑areas are not rigid assessment units and the OR addressed the correct geographical consideration (local catchment and proximate parks).
• Policy 3.27 / Other Open Space: Policy 3.27 did not apply to the Astroturf because it is not designated as Other Open Space. The proviso in clause (vi) of Policy 3.27 was therefore not engaged.
• Play and informal recreation / London Plan policies: The Astroturf was designated as a sports ground on Metropolitan Open Land and the OR addressed both its development plan designation and its recent informal public use as an other material consideration. The Council applied London Plan Policy 3.6 (play provision for new residents) to the housing element and London Plan Policy 3.19 to sports provision; it judged replacement facilities (including a 3G pitch and a free kickabout space) and the secured Community Use Agreement would provide superior provision and mitigate loss, a view shared by the Mayor.
• PSED: The court held the Council had due regard in substance to equality considerations. Officers understood who used the Astroturf (families, children and BAME users), assessed impacts, and secured mitigation via the s.106 Community Use Agreement. The absence of statistical verification did not make the inquiry so inadequate as to be unlawful. Even if there were shortcomings, s.31(2A) Senior Courts Act 1981 meant relief would have been refused because it was highly likely the outcome would not have been substantially different; the Mayor's Stage 2 Report also supported that conclusion.

Disposition: The claim was dismissed for the reasons above.

The claim is dismissed. The court held that (i) there was no mistake of fact in the Officer's Report about open space deficiency; (ii) Saved Southwark Plan Policy 3.27 did not apply to the Astroturf (it is not Other Open Space); (iii) the Council lawfully considered London Plan Policies 3.6 and 3.19 and Strategic Policy 11 and reasonably concluded that replacement facilities and a robust Community Use Agreement mitigated the loss; and (iv) the Council discharged the public sector equality duty in substance, and in any event relief would be refused under s.31(2A) Senior Courts Act 1981 because the outcome would not have been substantially different.