Pitch planning permission lawful despite claim councillors were materially misled, High Court rules

The High Court has found that West Berkshire Council's planning approval for a single-storey sports pavilion, car park and artificial turf pitch was lawful, rejecting a claim that planning officers materially misled the planning committee.

In Pearce, R (On the Application Of) v West Berkshire Council [2023] EWHC 209 (Admin), His Honour Judge Jarman KC dismissed both grounds of challenge to the approval of the development at Newbury Rugby Football Club, West Berkshire. 

However, the claimant has since vowed to appeal the judge's decision. 

The dispute involves two separate Newbury sports complexes that have playing fields and pitches, Faraday Road Stadium, a now-closed football stadium which featured a grass pitch, and Newbury Rugby Football Club.

Central to the legal challenge is the West Berkshire Council Playing Pitch Strategy, a document that was agreed on with the input of Sport England, which includes an analysis of supply and demand for grass and artificial playing pitches in the region.

A top priority in the strategy is a proposal to relocate and upgrade the single adult-sized grass pitch that existed at the football stadium to AstroTurf, together with necessary facilities, on an alternative site nearby.

Following the adoption of the strategy, the authority began considering options for a sports ground at various sites and decided to delegate authority to Alliance – an interested party in the case – to enter into an agreement with the rugby club to take a lease of land there to provide the AstroTurf pitch.

Alliance then submitted the planning application, which was granted in March 2022.

In the High Court, the claimant advanced two grounds of argument against the planning permission. The first was based on how the application for the permission was re-cast to overcome Sport England's objections and deficiencies in the proposed new pitch at the rugby club if intended to be a replacement for the football stadium.

It was submitted on behalf of the claimant that this was "materially misleading," as the point of the sports hub proposal was to fulfil the top priority in the strategy, namely, to provide a replacement for the football stadium, the claimant asserted. 

According to the claimant, the officers advised that the permission sought complied with the strategy, which compliance was a material consideration in favour of the development. Read as a whole, the officer's report gave the impression that the proposed pitch at the rugby club was intended to be a replacement for the football stadium, but did not grapple with whether it was a sufficient replacement or how it was to be secured.

It was also claimed that the cost of the development would be significant, meaning that it would realistically be the only new pitch built in the area. 

On this ground, counsel for West Berkshire argued that the future intentions of the authority as the owner of the football stadium, were not relevant to the planning merits of the application for the permission and that the claimant's case did not respect the separation between the authority's decision making as the owner on the one hand and as local planning authority on the other.

It also argued that objectors who wish to oppose the redevelopment of the football stadium would be able to do so if and when an application for permission to do so is made, and any such application will have to be assessed against council planning policy, including the National Planning Policy Framework (NPPF).

The judge accepted the council's submissions, noting that Sport England identified a clear strategic need for the proposed new pitch at the rugby club as a standalone scheme to address capacity shortages in the area. "It does not involve the loss of the football stadium, and any planning application which does involve such a loss will have to be assessed against the planning policies referred to above and what is required to offset any loss of pitch," he said.

"In my judgment, the joint statement was made to support the development of proposals at the rugby club to provide an enhanced replacement for the football stadium and when it seemed to be envisaged that the proposals might involve the loss of a pitch. However the application which was eventually made was to provide a pitch which was better than the one it replaced and better that what had been provided at the football stadium."

HHJ Jarman KC added: "Sport England no longer maintained its requirement of a condition to bring forward a grass pitch elsewhere. The proposed pitch was now being put forward as full or partial mitigation for any loss of the football stadium. This in my judgment will depend on the terms and conditions of any permission for development on that site." 

The judge then turned to ground two of the claim, which asserted that the planning committee misinterpreted a policy in the authority's Core Strategy, which restricts developments resulting in the loss of green infrastructure, including outdoor sports facilities, and paragraph 99(b) of the NPPF. 

Paragraph 99(b) of the NPPF says existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless "the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location".

The second ground arose out of a paragraph in a planning officer's report made in the early stages of dealing with the planning application, which set out the position of Sport England in a joint statement with the council.

That joint statement said that the application for the permission would be co-joined with a planning condition for the authority to deliver a new grass pitch within two years of completion of the permitted development. 

However, that position then changed, and it was clear from Sport England's later consultation response to the application for permission dated 12 November 2021 that such a condition was no longer sought, the council argued.

West Berkshire submitted that the reason for the change of position of Sport England was set out in the officer's report, namely that the grass pitch to be lost was for training and the proposed pitch could be used for rugby training but also for football training and matches. 

Accordingly, the view was taken that such a condition was not necessary or reasonable, it added. 

HHJ Jarman KC preferred the council's submissions, noting: "Officers gave proper advice, which the members ultimately accepted as they were entitled to. The informative, although non-binding, was sufficient to deal with their concerns."

He therefore dismissed both of the claimant's grounds.

Responding to the judgment, Cllr Lynne Doherty, Leader of West Berkshire Council, said: "We have been clear from the outset that the claims made by those seeking the judicial review were entirely without foundation and that our position was sound. 

"This judgment has reinforced our stance and shown that our planning processes were conducted appropriately."

The claimant has since applied for permission to appeal the judge's decision in relation to ground one of the claim.

In a statement confirming the move to pursue an appeal, the Chair of the Newbury Community Football Group, Paul Morgan, said: "Although the claimant has, like Newbury Community Football Group (NCFG), a keen interest in maintaining a sports facility in the heart of Newbury, his reasons for bringing this case goes beyond this." 

He said these included protecting public green space, challenging the conflict of interest between West Berkshire Council as a landowner and as an LPA, and ensuring proper public consultation in accordance with the Council's own constitution takes place.

Adam Carey