Ealing defeats latest challenge to siting of QPR training on metropolitan open land

The London Borough of Ealing has successfully defended its decision-making in the latest round of litigation over the proposed siting of training facilities for football club Queen’s Park Rangers on metropolitan open land (MOL).

In Brown v London Borough of Ealing & Queens Park Rangers Holding Ltd [2017] EWHC 467 (Admin) the claimant, an officer of the Hanwell Community Forum, sought to challenge a decision by the planning committee at Ealing to grant planning permission for the development of training and sports facilities on a 24.8 hectares at a site known as Warren Farm and owned by the council.

Counsel for the claimant, Marc Willers QC, argued that the officers in their report significantly misled the members of the planning committee by failing to properly advise them in relation to the correct approach to assessment of the MOL issues.

He submitted that it was clear from the Redhill Aerodrome case that in order to interpret the policy of the National Planning Policy Framework at paragraph 88 correctly and therefore apply it accurately, it was necessary for the decision-maker to weigh all harm, both MOL harm and non-MOL harm against the benefits of the proposal before a decision as to whether or not very special circumstances exist can be reached.

Willers argued that in the present case, in particular because of the way in which the officers' conclusions were structured, there were elements of non-MOL harm which were not taken into account and weighed against the benefits when the conclusion as to the existence of very special circumstances was reached and the permission granted.

He contended that when the committee report was examined the conclusions as to very special circumstances were reached prior to consideration of other matters such as public access, noise and lighting and flood lighting which he submitted could be seen from the officer's report gave rise to harm, which should have been taken into account in the earlier exercise of deciding whether or not there were very special circumstances in the case.

However, Mr Justice Dove rejected the challenge. Noting the claimant’s contentions in relation to public access, noise and lighting and flood lighting, the judge said he was “not satisfied that on a proper reading of the committee report there was any such other non-MOL harm to be taken into account on the basis of the officers' planning evaluation of the other material considerations relevant to the decision”.

Those evaluations could only be challenged on rationality grounds and, “rightly in my view”, Mr Willers did not advance any such arguments, the judge said.

“…The sensible approach…. is to presume that the members accepted and adopted the officer's views set out in the report. It is clear from the committee report that the officers reached the conclusion as a matter of planning judgment that the only harm to be weighed against the benefits of the proposal in applying paragraph 88 of the Framework was the harm to MOL.”

Mr Justice Dove said he was unconvinced that the claimant’s submissions in relation to a second ground of challenge – based on the contention that the council had failed to take into account the fact that the Warren Farm site formed part of the Brent River Park and that the proposed development conflicted with policy 7.18 of the London Plan – were arguable and he refused permission to apply for judicial review in relation to them.

Cllr Julian Bell, leader of Ealing Council, said: “We are pleased with the judicial review decision and, with QPR set to invest millions of pounds into the community sports facilities, I’m confident we’ve secured the best deal for local people.

“Once the site is up-and-running, QPR will implement a significant community sports development programme which focuses on encouraging local people, particularly young women, older people and people with disabilities, to get involved in sport. The club will also be responsible for on-going maintenance of the new facilities, with no cost to taxpayers or the council."

QPR CEO Lee Hoos said: "This is positive news and another significant hurdle that we've overcome.  There is still some way to go but we are really pleased with the outcome of this verdict.”

The Save Warren Farm campaign said it was considering an application to the Court of Appeal with its legal team, Richard Buxton Environmental and Public Law Solicitors and Marc Willers QC.

Kristina Kenworthy, solicitor from Richard Buxton Environmental and Public Law, said: "Development of Metropolitan Open Land, which this area is, requires the most stringent justification, and in our view Ealing came nowhere near to deciding the matter in favour of QPR in the correct way.

“The Courts so far may not have agreed, but it is a really important issue for the protection against inappropriate development throughout the country which has not been directly addressed, so the case may well go further.”

Malcolm Weller, of the Save Warren Farm Campaign team, said: “The battle is not over yet. Along with many people who know the facts about this planning application, we are hugely disappointed with the decision.  We have a vision where all of the land can be retained for community sports, recreation and leisure with sensible, realistic investment by the council and partners, without having to lease away the land for 200 years to a privately-owned, commercial organisation at a peppercorn rent.”

In May 2014 Mr Justice Ouseley rejected an earlier judicial review challenge brought by the Hanwell Community Forum.