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Boot v Elmbridge Borough Council

DATE: 06 Dec 2016

The High Court (Supperstone J) has quashed a planning permission granted for a new football and athletics stadium in the metropolitan Green Belt. The planning permission was granted by Elmbridge Borough Council (also the applicant for planning permission) on the basis that the proposal was not inappropriate development in the Green Belt. 

The Planning Committee concluded that the development fell within the second bullet point of paragraph 89 of the NPPF, which states that the “provision of appropriate facilities for outdoor sport” is not inappropriate development subject to the proviso that it "preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”. 

In assessing the impact on openness, the Planning Committee found that the development had a “limited adverse impact” on openness, and that this impact was less than “significant”. 

The Claimant argued that that the Council erred in its interpretation of paragraph 89 of the National Planning Policy Framework by finding that development could “preserve” the openness of the Green Belt, even if it causes harm to openness. It was argued that if a new sports facility causes any harm to openness, even limited harm, it does not “preserve” openness and is therefore inappropriate development (Judgment, para. 27). 

The Council argued that, as a matter of planning judgment, it was open to the Planning Committee to find that the proposal preserved the openness of the Green Belt, even if it caused limited harm. This was because, as Dove J observed in R (Lea Valley Regional Park Authority) v Epping Forest DC [2016] Env LR 8, at para. 62, all new buildings in the Green Belt will have some impact on openness (Judgment, para. 28-29)

Supperstone J accepted the Claimant’s submissions and concluded that a development cannot “preserve” the openness of the Green belt when it causes harm to openness. Therefore, if a new sports facility causes harm to the openness of the Green Belt, it is inappropriate development, regardless of the extent of the harm (Judgment, paras. 34-40). 

This interpretation of the proviso in the second bullet point of paragraph 89 of the NPPF is likely to equally apply to paragraph 90 of the NPPF which provides that certain changes of use are not inappropriate development provided that they “preserve the openness of the Green Belt”.  

See R (on the application of Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) 

Andrew Parkinson appeared for the Claimant (instructed by Richard Buxton at Richard Buxton Environmental and Public Law).

Neil Cameron QC and Zack Simons appeared for the Defendant (instructed by Solicitor to Elmbridge Borough Council).