Lessons from the Brockwell Park judicial review litigation 

The recent judicial reviews concerning events in Brockwell Park provide a useful illustration of how the Administrative Court approaches challenges to local authority decision-making in this increasingly scrutinised area. Taken together, the litigation highlights not a shift in legal principle, but rather the importance of framing, statutory footing, and evidential discipline in determining whether a challenge is likely to succeed.  

What is particularly instructive is the contrast between the successful challenge to a certificate of lawfulness in 2025 and the unsuccessful challenge to the grant of permission for festivals in 2026. Although both cases concerned the use of the same public park for broadly similar commercial events, they produced different outcomes because they engaged fundamentally different legal questions. 

The limits of permitted development: a strict legal exercise  

The earlier challenge to the use of Brockwell Park for “Brockwell Live” events arose in the context of a certificate of lawfulness based on permitted development rights under the GPDO.  The central issue in this challenge was whether the proposed use fell within the 28‑day limit for temporary uses.  

The court’s analysis illustrates the rigour with which these provisions are applied. In particular, the decision confirms that the concept of “use” for these purposes extends beyond the days on which events are open to the public. The court focused on the practical reality of the land’s use, including build, de‑rig and the period during which the land remained enclosed and unavailable for ordinary park use. On the evidence available, that period exceeded the statutory threshold.  

The case also underlines the importance of approaching a CLOPUD determination as a pure question of lawfulness, rather than a planning judgment. The statutory test under the Town and Country Planning Act 1990 requires a decision-maker to determine whether the proposed use would be lawful at the relevant date. Considerations such as whether the use is acceptable in planning terms, or whether it might be authorised in future, do not form part of that exercise. The court was clear that reliance on the prospect of subsequent planning permission was legally irrelevant in this context.  

Seen in this light, the outcome is not surprising. Where a case turns on a clear question of statutory compliance, supported by the applicant’s own documentation, the court is able to determine the issue with relatively little deference to the authority’s broader judgment.  

A shift to planning judgment: the 2026 decision  

The subsequent 2026 challenge proceeded on a materially different basis. Rather than relying on permitted development rights, the authority moved to a framework which involved a planning judgment and an assessment of the use of the park for recreational purposes.  

The claimant sought to argue that large-scale, ticketed commercial festivals should not fall within the concept of “recreation” in a public park. That argument was not accepted. The court held that recreation is a broad concept, encompassing activities undertaken for pleasure or interest, including organised cultural events such as music festivals.  

This reasoning is consistent with the approach generally taken in public and planning law, where statutory concepts of this kind are interpreted purposively and with a degree of flexibility, rather than in a narrow or exclusionary way.  

The court also accepted that the authority had undertaken an assessment of impact, including the extent to which the park would remain accessible and whether the events would give rise to unacceptable harm. In doing so, it applied the familiar principle that such matters fall within the planning judgment of the decision-maker, and are not for the court to re‑determine absent a clear public law error.  

The importance of legal framing  

The most significant lesson arising from the Brockwell Park litigation is the extent to which outcomes in judicial review are shaped by the legal framework within which a decision is taken.  

In the 2025 case, the authority’s reliance on permitted development rights meant that the decision was vulnerable to challenge on a binary, objective basis: either the 28‑day limit was satisfied, or it was not. Once the court concluded that the relevant period of use exceeded that limit, the decision could not stand.  

By contrast, the 2026 decision involved a broader evaluative exercise. Questions such as whether an activity constitutes “recreation”, or whether its impacts are acceptable, are matters on which reasonable authorities may differ. In those circumstances, the court’s role is limited and the threshold for intervention correspondingly high.  

This distinction is well established in principle, but the Brockwell Park cases provide a clear and practical illustration of how it operates in practice.  

Commercial events in public parks: an ongoing tension  

Both strands of the litigation sit within a wider policy context in which local authorities are increasingly required to balance:  

• the benefits of cultural and commercial events, including economic and community value; and  
• the protection and accessibility of public open space.  

The challenges brought in relation to Brockwell Park reflect that tension, but the decisions themselves do not establish any general legal principle that commercial events are inherently problematic. Instead, they demonstrate that the law provides different tools for scrutiny depending on the route by which permission is granted.  

Where authorities rely on narrow statutory provisions such as permitted development rights, compliance will be tested strictly. Where decisions are taken through the planning system, however, the courts will typically respect the authority’s role as primary decision-maker, provided that it directs itself correctly in law and reaches a rational conclusion.  

The Birketts view: practical implications for local authorities  

For local authorities, the principal lessons are relatively clear.  

First, caution is required when relying on permitted development rights for complex, intensive uses, particularly where the operational reality may sit close to (or exceed) statutory thresholds. In such cases, a more robust footing may be preferable.  

Secondly, where decisions are taken within the planning framework, the focus should be on ensuring that there is a clear and well-documented assessment of impacts, including accessibility, environmental effects and overall public benefit. The courts are unlikely to interfere where that exercise has been conducted properly.  

Finally, the cases illustrate the value of alignment between the legal basis of a decision and the factual material supporting it. Difficulties arise where the documentation demonstrates a form of use that is not easily reconciled with the statutory route relied upon.  

Conclusion  

The Brockwell Park judicial reviews do not signal any departure from established public law principles. Rather, they provide a useful reminder of how those principles operate in practice.  

The contrasting outcomes in 2025 and 2026 demonstrate that the success of a judicial review in this context is likely to depend less on the nature of the proposed events, and more on whether the challenge can be anchored to a clear error of law. Where such an error can be identified – particularly in a technical planning context – the court will intervene. Where the issue falls within the scope of lawful planning judgment, it will not.  

In the context of current and future planning decisions issued by the local authority, if you are looking for advice about the difference between an error in law in the decision-making and authorities exercising their planning judgment, we are here to help. 

Kaileigh Moreton is a Senior Associate and Chay Clark is an Associate at Birketts.