Guardians of Whitewebbs Park CIC v London Borough of Enfield

This is my judgment following a partly substantive and partly rolled up hearing of the claimant’s challenge to the grant (subject to conditions) of planning permission on 22 July 2025 by the defendant (the LPA) to the interested party, the holding company of the well known Premier League football club (THFC) at the site of the former Whitewebbs Park Golf Course in Enfield. The claimant is a campaigning organisation in the form of a community interest company.

The permission is as follows:

“Change of use of former golf course (Use Class F2) to provide a football training centre (Sui Generis) and parkland (Use Class F2), comprising of football pitches and associated infrastructure; change of use, modification and extension of the existing Northern Clubhouse building to provide football training centre and associated uses (Sui Generis); restoration and enhancement of parkland landscape, including new footpaths; reinstatement of historic carriageway in Whitewebbs Wood; modifications of existing Southern Clubhouse to form a replacement cafe and public toilets, alongside a part change of use to include a flexible community space (Use Class F1/F2/Class E); demolition of existing grounds maintenance building and construction of replacement grounds maintenance building; construction of gatehouse; hard and soft landscaping works to include land reprofiling; new vehicular and pedestrian access, including formation of a link to land to the east, and modifications to existing vehicular and pedestrian access and parking; restoration of Whitewebbs Pond; and associated works.”

The challenge was brought on six grounds, of which the first five remain live. The claimant has permission from Lang J to advance the first four grounds. She refused permission to proceed with the fifth and sixth grounds. The sixth has not been renewed and I need say no more about it. In March 2026, Lieven J directed a rolled up hearing in respect of the fifth ground.

Broadly, the remaining five grounds are:

Shortly before the hearing, on 17 June 2026 the LPA filed an application for an order that it should have “[p]ermission … to withdraw its defence”. This followed a change in the political control of the LPA arising from the local government elections held in May 2026. Mr Ogilvie-Harris, for the LPA, made the application orally at the start of the hearing, before departing.

I indicated that I saw no need for any formal order from the court and that there could be an issue as to whether it would be right to make any such order, if I have power to do so. In the event, all parties were content with my suggestion that I would simply record in my judgment, as I now do, that the LPA had changed its position and does not now wish to defend the claim.

Notwithstanding the LPA’s withdrawal from the fray, the claim is strongly contested by THFC and strongly maintained by the claimant, in both cases through leading and junior counsel advancing powerful and eloquent written and oral arguments for which the court is, as always, very grateful.

THFC says the grounds are all ill-founded; that alternatively, on the first four grounds relief should be refused applying section 31(2A) of the Senior Courts Act 1981 (the SCA 1981) because it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred; and that the fifth ground (apparent bias) is unarguable.

Whitewebbs Park (the park) is an area of mainly open space in Enfield. Much of it used to be a golf course, with two club houses. In April 2021, the LPA decided to close the golf course and market the site of the former golf course for sale, comprising 54 per cent of the park or 57.2 hectares. THFC became the preferred bidder and in September 2023 entered into an agreement for a lease with the LPA, subject to THFC obtaining planning permission to develop the leased site and to perform management functions over the rest of the park.

The essence of the deal was (and is) that THFC would acquire the site to build, on part of it, a women’s and girls’ football training academy comprising about 18 per cent of the park, alongside the existing men’s and boys’ training academy just outside the park. In return, THFC would pay the LPA a consideration of £2 million. THFC would in addition spend some £3 million on improvements, facilities and management functions for the public parts of the park: a café, car parking, toilet facilities, footpath maintenance, planting, and so forth.

Opposition to the proposals quickly materialised. The decision to enter into the agreement for the lease was unsuccessfully challenged. Much more detail than is necessary here can be found in the judgment of Mould J in R. (Wilkinson) v. Enfield LBC [2024] EWHC 1193 (Admin), dismissing that challenge. There was no appeal. In November 2023 an ecologist, Mr Denis Vickers, provided an ecological appraisal for a different campaigning group called Save Whitewebbs. THFC applied for planning permission (with the reference 24/00987/FUL).

Mr Vickers’ lengthy appraisal later became part of the objector materials on the LPA’s portal. Among many other observations, he questioned the existing BNG calculations. They were, he opined (paragraph 5.1.5):

“… based principally on habitats and do not adequately take account of faunal species present even if of high conservation status. Therefore, with regards the potential development of Whitewebbs Park, woodland planting is not considered appropriate with regards off-setting the loss of grassland. This will not benefit bird species and invertebrate species associated with open grassland, the populations of which have suffered an unprecedented decline in recent years. Additionally, if woodland planting is chosen to off-set the loss of grassland, the poor-quality secondary woodland which results may take more than 30 years to mature and possibly 100 years plus before it supports a relatively wide range of fungi, lichens, Bryophytes and fauna.”

THFC submitted its planning application on 22 March 2024. Four days later, it added a supporting ecological impact assessment, BNG assessment and outline parkland management plan. On 18 April 2024, the LPA instructed Mr Giles Sutton of the consultancy firm GS Ecology, to provide advice and ecological support in respect of the planning application, instead of obtaining the views of an in-house ecology officer. Rather unusually, the LPA also appointed an external planning agent, Ms Kathryn Williams of KEW Planning Ltd, Cardiff, to act as the LPA’s case officer liaising with Mr Sutton.

The email exchanges between Mr Sutton, Ms Williams and others are, unjustifiably, heavily redacted in the bundle. This has made the court’s task slower and more difficult. The redactions were not just of telephone numbers and the like but of the names and organisations of those corresponding. With help from counsel we were, for the most part, able to piece together the communications which showed the following. The correspondence followed a meeting held at the site on 26 April 2024. Present were Mr Sutton, Ms Williams, a representative of THFC and of its ecologist.

Mr Sutton was not pleased with remarks of Ms Williams at that meeting, not directly on the subject of BNG, but on the subject of reptile survey evidence. In an email of 3 May 2024 he reproached Ms Williams:

“… I was concerned by your conduct at our meeting last Friday … You contradicted me in front of the applicant and publicly disregarded my advice. … Rather than taking my advice you stated that the survey did not need to be redone … as the results would make no difference to the outcome …. The opinion you gave is improper – without knowing what the ecological baseline is it is not possible for the planning committee to reach an informed decision. …. Fortunately, …. it appears that the applicant has reluctantly concluded that the survey needs to be redone. …

I would like your assurance that a similar situation would not reoccur, that you will take on board my advice about ecological matters, not contradict or undermine me.”

Ms Williams provided a qualified apology the same day:

“It was confusing as at the start you said there were 2 results that were not compliant and by the end of the meeting it was 5. I was trying to establish how many surveys you wanted to be re-done in total and also to find a solution to what the potential impacts would be.

It was not my intention at all to undermine you or contradict you at all, and I apologise if you felt that this was the case. Perhaps it would be helpful to have a pre-meet for 5 minutes beforehand as a way to understand matters and ensure this does not happen again?”

Mould J’s judgment was handed down on 17 May 2024, confirming that the grant of the agreement for a lease was lawful. Then in July 2024, the ecologist instructed by THFC, Mr Craig Brookes of Logika Group, provided a further ecological impact assessment in support of THFC’s planning application. It was lengthy and I need only refer to a short extract. On the topic of BNG, he noted, uncontroversially, that the development would have to provide BNG as a mandatory requirement under Schedule 7A to the Town and Country Planning Act 1990. The requirement is, all parties agree, 10 per cent at a minimum.

After explaining his methodology and use of the “Standard Biodiversity Metric” developed by Natural England, Mr Brookes opined at paragraphs 9.1.1.8-9:

“9.1.1.8 Overall, the Site currently is valued at 189.03 habitat units, 0 hedgerow units and 5.80 river units; based on the indicative masterplan shown in the Design and Access Statement, following delivery the Site value will increase to 240.23 habitat units, 17.04 hedgerow units and 10.53 river units respectively. This represents an increase of 27.09% in habitat units 100% (this is a nominal figure given starting value is zero) in hedgerow units and 81.69% in river units. However, the trading rules are not satisfied as the loss of 73 individual trees is not compensated for fully. Currently 241 individual trees have been allowed for within the OWPMP (Footnote: ¹), with an additional 3.28ha of woodland. The woodland planting will provide a large number of trees and has been favoured as it bolsters the existing woodland resource and provides greater connectivity. However, the OWPMP notes that planting densities will be low at 500 to 650 trees per hectare, to allow for natural regeneration. This gives ample opportunity to meet the individual tree trading rules post-consent should this be desired by altering the management prescription over 0.5 to1ha of proposed woodland to prevent development of a shrub layer around the plantings. Alongside the Application a copy of the Biodiversity Metric Workbook has been provided.

9.1.1.9 The habitats to be created or enhanced have been specified based on the potential to meet condition measures in light of recreational pressure. For example, the majority of grassland within the publicly accessible areas has been assumed to remain as modified grassland, with only smaller low trafficked areas being specified as other neutral grassland. Similarly, some areas of existing habitat that will be positively managed are shown as retained as it is unlikely that a change in condition class could be achieved (e.g. parts of Whitewebbs Wood in moderate condition are unlikely to meet good condition in the future). This is a precautionary position and therefore, given correct management greater value maybe achieved over time.”

Thus, THFC was claiming through Mr Brookes’ report that the development would deliver an increase of 27.09 per cent in habitat units, as part of the BNG; which is between 2.5 and 3 times the statutory minimum of 10 per cent. Mr Sutton, on behalf of the LPA, considered that claim and took issue with it. In his “Ecology Consultation” document dated 21 October 2024, he regretted the absence of a standalone BNG report, as the LPA had requested; and stated:

“… As a minimum the council will need to be satisfied that a 10% BNG can be achieved, that the Biodiversity Gain Hierarchy can be met and that the Biodiversity Gain Condition is capable of being discharged. My advice is that at present it cannot be satisfied of this.

One of the applicant’s VSC [very special circumstances] is that the development will a deliver [sic] a significant BNG see paragraph 27 and 8.122–8.124 of the planning statement.”

After quoting from the design and access statement, Mr Sutton continued:

“We requested a stand-alone report was so that we could clearly evaluate the assumptions that have been made to reach the conclusion that the development will deliver a 27% BNG.

It is accepted that the post development habitats at this stage can only be an estimate. This is because the landscaping scheme is likely to be iterative informed by ongoing discussions between the applicant, the council and other stakeholders. But the landscaping statement, if this is to be used as the part of the BNG assessment (i.e. as the Technical Note states) needs to clearly set out how and why the different condition assessment criteria will be met post development.

A clear baseline also needs to be provided and there needs to be clear reasoning as to why each type of vegetation has been assigned to a particular habitat type1 and why the condition has been chosen. It needs to be stated what minimum mapping units have been used. It needs to state why one habitat type has been chosen over another referencing the habitat definitions and the metric guidance. There need to be clear scaled plans cross referenced to the metric (with habitat parcel numbers in the column) and cross referenced to the tree reports and outline plans for the site. The two single A3 plans (given in the EcIA – no page numbers) at a low resolution are not sufficient to do this.

This is important because the metric and planning policy requires an uplift in habitat units and if the baseline is underestimated then the amount of units needed to provide an uplift would be more than stated (and vice versa). Furthermore, the number of baseline units (and subsequent uplift) will need to be referred to in a conservation covenant or planning obligation that will need to be set to ensure that the units are delivered.”

And in a further slightly amended version of the document, he included a summary as follows:

“Summary

The ecological surveys have largely been undertaken to an adequate standard, although grassland quadrat data is missing.

Negative impacts during construction can be managed via the implementation of a CEMP (Biodiversity) and Natural England’s licensing system which can be secured via planning conditions.

BNG information is significantly lacking and it has not been demonstrated that the development will deliver BNG (and certainly not the 27% claimed by the applicant), that the net gain hierarchy has been complied with or that if granted the biodiversity gain condition could be discharged. A clear, concise stand alone report with associated metric be provided, this should include all of the information needed to assess the applicant’s claim that the development will deliver a 27% BNG, and needs to include:

1.

Clear and accurate maps showing habitats (including trees, and their size, i.e. small, medium large, very large, veteran, cross referenced to the arboricultural report) before and after development. These needs to show the boundary of the ancient woodland and identify any veteran trees. The maps need to be clear (i.e. at an appropriate resolution and size) so that they can be clearly read and analysed, at a recognised scale, and interpreted with trees and tree groups shown

2.

A detailed description of each habitat parcel

3.

Condition assessment sheets for each habitat parcel and for trees (as per the Metric guidance)

4.

The size of the minimum mapping unit used for each habitat type / parcel and why these were chosen

5.

An explanation as to why one habitat type (classification) has been chosen over another for the different habitat parcels – referring to the DEFRA habitat definition as appropriate.

6.

A list of the trees that have been included in the metric as individual trees, and where these are grouped together and where they have not been and reasoning for this (e.g. lines of trees).

7.

A list of trees in point 6 above that are proposed to be removed

8.

Plans showing (assumed) proposed habitat parcels and their condition

9.

A list (or an outline schedule) of trees in point 6 above that are proposed to be planted

10.

An explanation of the assumptions that have been made about the proposed habitats, including why one habitat type (classification) has been chosen over another, and why the habitats will reach the anticipated condition.”

A local resident, Mr Sam Tillbrook who supports the claimant, placed an objection on the LPA’s portal on 23 October 2024, referring to Mr Vickers’ report and adding (as summarised on the portal):

“Biodiversity net gain (BNG) calculations are based principally on habitats and do not adequately take account of faunal species present even if of high conservation status. Therefore, with regards the potential development of Whitewebbs Park, woodland planting is not considered appropriate with regards off-setting the loss of grassland. This will not benefit bird species and invertebrate species associated with open grassland, the populations of which have suffered an unprecedented decline in recent years. Additionally, if woodland planting is chosen to off-set the loss of grassland, the poor-quality secondary woodland which results may take more than 30 years to mature and possibly 100 years plus before it supports a relatively wide range of fungi, lichens, Bryophytes and fauna". 50% of the priority neutral/acid grassland would be lost to monoculture football pitches and astroturf. Astroturf/plastic-grass has a large carbon footprint from manufacturing, transport, installation, and non-recyclability. It devastates wildlife during use, shedding microplastics into soil, drainage systems, rivers, and seas. The plastic-grass membrane suffocates life below and contributes to flooding in wet weather. Preserving the open grassland is vital for butterflies, spiders, bees, small mammals and an abundance of insects such as beetles, and with THFC's tree planting proposals, this is not recognised. THFC has overestimated the BNG. …”

After stating other grounds of objection (on re-landscaping, ponds, tree felling, pollution, glyphosate and Whitewebbs lake, he concluded, in the summary:

“Harm Not Outweighed: Overall, there is no benefit whatsoever regarding the environment, and all of THFC's proposals would involve harm to the Green Belt. For these reasons, this planning application is not in line with NPPF paras. 180, 185, 186 and 191. It is also not an acceptable use of land (NPPF para. 194).

We believe this planning application should be refused for the reasons stated above.”

On 6 November 2024, KEW Planning, on behalf of the LPA, sent out a Teams invitation to a video meeting two days later. Among the invitees were Ms Karen Page, the LPA’s head of planning; Mr Sutton; Ms Williams; Mr Richard Serra of THFC; Mr James Beynon of Quod (THFC’s planning consultant); and Mr Alan Kirby of Logika. The purpose was, as explained to Mr Sutton by KEW Planning, “for you [Mr Sutton] to outline all the information you require and any concerns you have regarding BNG so that the applicant and their ecology consultant can provide a direct response”.

Ms Williams then emailed Mr Sutton a short while later, explaining further that “”[t]his matter has escalated up to the Chief Executive and we urgently need to resolve it, which is why Karen [the LPA’s head of planning] is attending, and Richard Serra, the applicant. Brett [Mr Brett Leahy, the LPA’s then director of planning and growth] has been informed of the issues and as a result this is now of the highest priority.” Mr Sutton was asked to be ready to address:

“The issue with the methodology you do not agree with on the BNG, setting out why i[t] doesn’t meet the requirements and why you need a different methodology to be used.

….

We need to make sure the Council are covering themselves from a risk perspective and that we are 100% watertight.”

The meeting then took place; there is no record of it but I infer that Mr Sutton’s concerns were discussed so that Logika could look again at the issue of BNG in the light of his concerns as expressed in his writings, as quoted above. It is clear from subsequent emails that on 18 November 2024, Ms Williams pressed Mr Sutton for his comments since, she explained, “[t]he committee report needs to be completed today to be peer reviewed and I urgently need your comments today to enable me to complete the report.”

Mr Sutton emailed Ms Williams that he was not reassured; he advised Ms Williams, i.e. the LPA, that the BNG baseline could not be agreed. Mr Sutton wrote a memorandum explaining his reasoning the same day - also the day Mr Tillbrook raised a further objection, citing issues as to the quality of the grassland at the site. Ms Williams responded thanking Mr Sutton for the memorandum and asking as follow up questions:

“1.

Do you have an objection on ecological grounds or is the information satisfactory to remove any previous objection?

2.

Do you have any planning conditions to be imposed to ensure delivery of the ecological works and enhancements?

3.

The overall summary seems to be that the BNG % gain is around 8-10%. Which is it? It needs to be at least 10%.”

On 19 November 2024, Mr Sutton produced a further six page document, “Ecology Consultation”. He referred to the report of Mr Vickers and Logika’s updated report. He said he had compared the two. He noted that Logika had updated its habitat BNG to “+33.9% above the baseline”; however, the baseline was not agreed. The quality of the grassland was in issue: the lower the quality of existing grassland, the lower the baseline and hence the greater the anticipated BNG from the development; and vice versa.

This issue could reduce the BNG down to about 19 per cent. The quality of the woodland was also in issue. Mr Sutton agreed with Mr Vickers and disagreed with Logika’s assessment of the quality of the woodland at the site. This would also impact on the baseline and hence the amount of anticipated BNG. Specifically, Mr Sutton described as “incorrect” Logika’s statement that “[t]he woodland present within the Site does not align with the woodlands described above”, in Logika’s updated assessment. Mr Sutton’s advice was that “the bulk of woodland should be classified as w1f (or a subcategory thereof) as Mr Vickers has done.”

The summary at the end of his Ecology Consultation needs quoting in extenso:

“Summary

Two ecology reports have been provided, one by the applicant’s ecologists and one by Save Whitewebbs. Both have been produced by experienced ecologists, one of whom (Mr Vickers who produced the report for Save Whitewebbs) is a member of the Chartered Institute of Ecology and Environmental Management.

The reports differ in particular in terms of their assessment of the woodland and grassland habitats and if the Save Whitewebbs data is inputted into the DEFRA Metric the net gain is considerably less than the 33% referred to by the applicant, in one scenario showing a net loss of approx. 21.65% in A_HUs below the baseline.

It would be counterintuitive to conclude that the development would result in the significant (33% above the baseline) BNG that the applicant claims given that a large proportion of the park (around 40%) would be lost to the new development.

We do not have an agreed baseline for the site as there are inadequacies in the applicant’s BNG report and differences in the classifications between the two ecologists who have both surveyed the site (in my opinion Mr Vickers better reflects the habitats on the site, particularly for the woodland).

The council will need to weigh the BNG position in the planning balance, i.e. state that the development may not achieve a 10% net gain, but this (on its own) would not warrant a reason for refusal. The reason it would not warrant a RFR is that:

1)

the development will be subject to the ‘biodiversity gain planning condition’ as referred to in 7A of the TCPA. This means that before they commence works a detailed Habitat Management and Monitoring Plan that demonstrates how the biodiversity gain planning condition is met. This will need to be submitted to and approved in writing by the council. If this shows that the development does not result in a 10% BNG then offsite units will need to be bought. This will all be detailed in the application to discharge the biodiversity gain planning condition.

2)

planning policy guidance states: ‘it would generally be inappropriate for decision makers, when determining a planning application for a development subject to biodiversity net gain, to refuse an application on the grounds that the biodiversity gain objective will not be met.’

The council also need to consider if the 'Biodiversity Gain Hierarchy” as set out in Articles 37A and 37D of the Town and Country Planning (Development Management Procedure) (England) Order 2015 has been complied with and you may wish to refer to this in your report.

[passage set out]

In this case as most of the habitats to be impacted upon are not ‘medium’ or above distinctiveness then the first of the two bullet points does not apply (arguably it does because the trees are ‘medium’ distinctiveness are and according to Mr Vickers some of the grassland is but this is a small proportion of overall habitats). In relation to the second point as long as BNG (or lack of it) has been weighed up in the planning balance then the second point has been complied with.

In terms of conditions there will need to be a number of conditions set as per my earlier memo, and I will provide wording for these separately.

However, BNG will need to be secured via a legal agreement.

… .”

In an explanatory email to Ms Williams the same day, Mr Sutton stated:

“I am not objecting to the application as such. My advice is that the development won’t lead to the BNG that the applicant claims. This is because they have classified the existing woodland incorrectly as a lower distinctiveness (value) habitat (and probably the grassland, although this is less clear) meaning that the baseline is lower and the claimed net gain higher than it should be.

It is counterintuitive to conclude that the development would result in the significant (33% above the baseline) BNG that the applicant claims given that a large proportion of the park (around 40%) would be lost to the new development. In my opinion if the council were to accept this their decision could be easily challenged.

We do not have an agreed baseline for the site as there are inadequacies in the applicant s BNG report and differences in the classifications between the two ecologists who have both surveyed the site (in my opinion [Mr Vickers] better reflects the habitats on the site, particularly for the woodland) ….

The council will need to weigh the BNG position in the planning balance, i.e. state that the development may not achieve a 10% net gain, but this (on its own) would not warrant a reason for refusal. The reason it would not warrant a RFR is that:

1)

the development will be subject to the biodiversity gain planning condition as referred to in 7A of the TCPA. This means that before they commence works a detailed Habitat Management and Monitoring Plan that demonstrates how the biodiversity gain planning condition is met. This will need to be submitted to and approved in writing by the council. If this shows that the development does not result in a 10% BNG then offsite units will need to be bought. This will all be detailed in the application to discharge the biodiversity gain planning condition.

2)

planning policy guidance states: ‘it would generally be inappropriate for decision makers, when determining a planning application for a development subject to biodiversity net gain, to refuse an application on the grounds that the biodiversity gain objective will not be met.’”

On 25 November 2024, Quod, on behalf of THFC, sent to the LPA – probably, to Ms Williams – a note from Logika responding to Mr Sutton’s latest Ecology Consultation and indicating Quod’s understanding that “you are seeking a peer review of the ecological work from [redacted, probably Plumb Associates, of which more below] and I hope the attached is of assistance in that review.”

In the same email, Quod summarised Logika’s response (which I was not shown), thus:

“The Applicant has adopted an industry standard and rigorous approach to assessing both the ecological value of the site and a calculation of the biodiversity net gain.

The approach adopted has followed the advice of Enfield Council.

The evidence is based on an agreed scope of surveys of the site, carried out under industry standard procedures.

There are no other alternative surveys of the site that contradict those provided by the Applicant.

The interpretations adopted by Logika are both rational and reasonable, and the conclusions on BNG similarly sound.”

Someone acting for the LPA, probably Ms Williams, ran that view (and Logika’s note) past Mr Sutton the next day. His response was:

“I am not sure if or how to respond to this, I disagree with the bullet point statements below, and many of the points made in the memo and it doesn’t change my previous advice. I am happy to discuss over the phone if that is easier.”

Ms Williams had already, the previous day, set out the terms of the proposed review in an email to an officer of Essex County Council, whom Ms Williams was asking for help. That email confirms that Mr Sutton’s ecological statements were “not available on public access”, i.e. they were not on the portal to be seen by objectors such as Mr Tillbrook and others. Ms Williams described the review as “a third party peer review of ecology reports … and the response from the consultant acting for [the LPA].”

In the same email, Ms Williams stated the scope of the work thus:

“1.

Review the ecological reports and biodiversity (in the EclA) information submitted. The BNG is stated as being a 30% increase, which is listed (by cumulative purposes) as a Very Special Circumstance, as the site is in the Green Belt.

2.

Review the LBE Ecologist comments (these are attached for ease as not available on public access). These state that the BNG is only 8-10% but that there is no objection now.

3.

Provide an independent review and response that evaluates whether the information submitted is sufficient and the measures proposed acceptable.

4.

Provide a fee for speaking at planning committee …. to answer any questions members have, and respond to queries if they are raised when the objectors speak.”

The Logika report referring to a likely BNG of some 27 per cent evidently was on the portal, since Mr Tillbrook, supporting the claimant and objectors, referred to it in a further objection on 27 November 2024, contrasting it, like Mr Sutton (but unaware of Mr Sutton’s views) with Mr Vickers’ assessment. A similar objection was posted the next day by Mr Edward Allnutt, who stated that he was a member of the Guardians of Whitewebbs, i.e. the claimant.

Also on 28 November 2024, an environmental consultancy called Plumb Associates provided Ms Williams with a fee quote for the exercise, described as “a peer review of the ecology elements relating to planning application [reference given].” The comment that followed was:

“I understand that this is a sensitive site that has attracted significant local opposition, including from professional ecologists. It is therefore necessary to have an independent review of all the information that has been submitted regarding ecology and biodiversity net gain to help inform the decision-making process and ensure that it stands up to rigorous scrutiny.”

On 2 December 2024, Ms Williams emailed someone at THFC or an agent of THFC asking if the latter would be willing to pay the fee charged by Plumb Associates for the review. She repeated the terms of reference but in different words, thus:

“1.

Review the ecological reports and biodiversity (in the EclA) information submitted. The BNG is stated as being a 30% increase, which is listed (by cumulative purposes) as a Very Special Circumstance, as the site is in the Green Belt.

2.

Review the LBE Ecologist comments. These state that the BNG is only 8-10% but that there is no objection now.

3.

Provide an independent review and response that evaluates whether the information submitted is sufficient and the measures proposed acceptable.

4.

Provide a fee for speaking at planning committee … to answer any questions members have, and respond to queries if they are raised when the objectors speak.”

THFC agreed to pay for the work and Plumb Associates were happy to be paid by THFC. Ms Williams asked whether Plumb Associates wanted to visit the site unaccompanied or in the presence of “the applicant’s ecologist”, i.e. Logika. Mr Sutton was not to be invited to the site visit. Plumb Associates (probably in the person of Mr Steve Plumb) wanted to start unaccompanied before meeting Logika’s representative at the site. Someone acting for the LPA, probably Ms Williams, sent the following to Mr Plumb in an email of 4 December 2024:

“If you are able to share draft responses with us before sending through to anyone else. that would be great.”

On 20 December 2024 an exchange of emails, now heavily redacted, took place. I find as follows. First, in the early morning at 6.30am, Ms Williams pressed Plumb Associates to send the draft report, asking what time she would receive it. Plumb Associates sent her and others the draft report at 10.02am. At 10.54am someone, probably Ms Williams, suggested two stylistic or grammatical changes and added:

“Is it possible to state in the conclusion that the BNG uplift is circa xxx %? You said above 20% under the woodland classification but not as an overall measure for the site. Be good to have that included please.”

At 11.38am someone, probably Ms Williams, forwarded the revised version and 14 accompanying images to certain persons with the message:

“All,

I spotted a couple of mistakes and asked for the BNG figure, which is now in the last page of the report.”

Mr Plumb’s report (the Plumb report) was dated December 2024 and described the process as one of “independent, unbiased verification of the submitted documents to safeguard the interests of local residents, the environment and the Council”. Mr Plumb stated on the first page that he had reviewed the ecological and BNG assessments provided by THFC, i.e. Logika’s assessments, and those provided on behalf of Save Whitewebbs, i.e. Mr Vickers’ assessments. He listed those documents as the documents he had “principally considered”. No document from Mr Sutton was listed or mentioned; nor was he or GS Ecology mentioned in the Plumb report.

After comparing Mr Vickers’ treatment and Logika’s treatment of the issue of grassland quality, Mr Plumb went on to address the issue of BNG. He commented that the issue was important because “the applicant has identified BNG as a VSC [very special circumstance]; thus “it is important that the Council can be confident that a significant increase can be achieved”.

Stating his conclusions and recommendations at the end, Mr Plumb endorsed the work of Logika and its estimated BNG of 33 per cent for habitats and its other estimates, producing an anticipated BNG in which “all the elements are well in excess of the 10% mandatory target”. He concluded:

“the information provided is sound and sufficient to enable Enfield Council to make an informed decision regarding the likely impacts and mitigation requirements for this proposal.”

The claimant submitted its formal objection to the planning application in a document dated 3 February 2025, attached to an email from Mr Tillbrook, chair of the claimant organisation, on 5 February 2025, addressed to the LPA’s “Governance Team”, together with an executive summary. The claimant evidently had access to the officers’ report by then, although it is dated later, because Mr Tillbrook emailed the LPA’s planning officers on 4 February 2025:

“In the officer's report for application 24/00987/FUL, reference is made multiple times to an ‘Ecology Officer’. However, I could not find anything about this Ecology Officer.

Would you be able to let us know who this is?”

The LPA did not respond to that request.

The claimant’s detailed objection included addressing the issue of BNG in some detail at the start of the section on “Environment, Sustainability and Ecology”. At the start of that section, reference was made to Mr Vickers’ report the claimant stated: “we believe that THFC has considerably overestimated the BNG of its proposals”. At the end of that section, the claimant submitted:

“… Harm Not Outweighed: The harm of the proposed development is not outweighed by the negligible historic preservation in this VSC claim. Furthermore, the proposals constitute an overall negative impact both to the Park and to its historic assets.”

The officers’ report was dated 11 February 2025 and at some point around that time or earlier, was placed on the LPA’s planning portal. Mr Sutton had already read it the previous evening. He emailed the LPA – or probably to its agent Ms Williams (the recipient is redacted out) – on 11 February, commenting:

“I read last night the report for tonight's planning committee. The discussion of ecology matters does not reflect the advice I have given you on Biodiversity Net Gain. I note that the report refers to ‘the Ecology Officer’ and to ‘an Independent Audit Report by a qualified Ecologist’.

I would be grateful if you confirm that in relation to BNG ‘the Ecology Officer’ does not refer to me, and that ‘an Independent Audit Report by a qualified Ecologist’ does not refer to my advice which, as you know, is that the development is unlikely to deliver the BNG referred to in the report.

I would also be interested to see the ‘Independent Audit Report by a qualified Ecologist’ (presumably this is by Wardell Armstrong as referred to in Tim Waring’s email dated 25 November) and would be grateful if you can forward it to me.”

The LPA did not respond to that email. It is clear from Mr Sutton’s remarks that he was unaware of the Plumb report and was not consulted by Plumb Associates in the course of its preparation. There is no clear evidence about the extent to which Mr Plumb was made aware of Mr Sutton’s views or the basis on which he formed them. The Plumb report provides no commentary on or mention of Mr Sutton’s analysis of the BNG issue.

The officers’ report is a long and detailed document on which both parties’ counsel made many observations and submissions. I will need to return to it when considering those observations and submissions. These included submissions about the references to the “Ecology Officer”. In this narrative, I confine myself to recording the recommendation that THFC’s planning application should be granted and the basis of that recommendation.

Officers explained in the assessment summary, at paragraph 2.8 and following, that because there would be some harm to the openness of the Green Belt, the development would be inappropriate unless “very special circumstances” outweighed that harm. THFC had provided “information to support the VSC case” (2.12). Considered cumulatively, these were reckoned “to outweigh the harm caused to the Green Belt through inappropriate development and a loss of openness.” Six “VSC items” were then listed. All but the last were given “substantial weight” in the decision making process.

The first three related to the promotion of women’s football and the need for an élite academy for this purpose; the absence of any suitable alternative site nearby; and that the facility would be “inclusive of the local communities”. The fourth VSC item was the “[e]nvironmental and sustainability benefits”, set out in section 8 of the report. The fifth was health and social benefits. The sixth and last was economic benefits during the construction and during the operational phase. This last item was given “moderate weight”.

These six VSC items were looked at in more detail in section 8 of the report. At 8.57, the environmental and sustainability benefits were broken down into 10 components. The fourth of these 10 components was described as follows:

“4.

A significant provision above the statutory 10% minimum requirement in Biodiversity Net Gain, (33% for habitats, 81% for watercourses and 17 hedgerow units).”

Towards the end of the report, in the section headed “Planning Balance”, officers stated (11.4) that:

“While elements of the proposed development are assessed as being inappropriate development within the Green Belt and would result in harm to the Green Belt which requires significant weight in decision making, it is considered that ‘Very special circumstances’ exist and the harm outweighed by the benefits of the scheme.”

And at 11.6, the conclusion was stated as follows:

“A detailed assessment of the proposals has been undertaken, taking account of the relevant policies and legislation and the response to the public consultation. On balance, taking account of the national Green Belt policies, the presumption in favour and the weight to be given to development, it is concluded that the proposed development for the reasons set out within this report, has demonstrated ‘Very Special Circumstances,’ and when viewed overall, accords with the policies of the NPPF and Development Plan and other relevant material planning considerations including emerging policy. The application is therefore recommended for approval, subject to planning conditions, and contributions and obligations secured via legal agreement to mitigate the impacts of the development.”

At the planning committee on 11 February 2025, one councillor disclosed being a season ticket holder at Tottenham Hotspur FC; another, to being a supporter of the club; and a third to having once received free tickets to watch a Tottenham match. The legal adviser confirmed that all three could take part in the meeting and vote. There were no “background papers” listed or provided to members with the officers’ report. The members did not see either Mr Sutton’s reports nor the Plumb report. Nor did the objectors.

Ms Williams presented the officers’ report, recommending the application be granted. Mr Allnutt led a delegation from the claimant, whose members spoke against the proposals. Various councillors also spoke against them. Mr Plumb was there. Mr Sutton was not. Officers responded to objections. The debate appears from the minutes to have been quite lively. On the subject of trees, biodiversity and ecology, officers responded to members’ questions by stating (among other things), according to the minutes:

“It had become mandatory a year ago for all major schemes to achieve 10% biodiversity net gain. This was calculated through a standardised metric developed by Defra with Natural England that involved establishing a baseline value of habitats and assessing the impact of proposed changes, enhancements and management. The baseline was taken from the ecology surveys with the last of these carried out in July 2024 and there was good consistency between the assessments submitted by the applicant and a Whitewebbs group. Altering the metrics e.g., using tree planting compared with grassland enhancements, gave similar gains of 32-33%, so members could be confident this level could be provided.”

The committee members voted by a majority of seven to four, with one abstention, to grant the application. In the usual way, this was subject to the setting of appropriate conditions and a section 106 agreement, the wording of which was to be agreed between THFC and the LPA’s head of planning, who was given delegated authority for that purpose.

On 11 March 2025, the LPA’s then chief executive, Mr Ian Davis, attended a working lunch at THFC’s training centre, at the invitation of THFC, to mark Mr Davis’ 17 years of service to Enfield Council and his forthcoming resignation as chief executive. He was to be succeeded on an interim basis by Mr Perry Scott, who was also present. Mr Scott was to be introduced to board members. They were hosted by Mr Daniel Levy, then executive chairman; Ms Donna Maria Cullen, then executive director; and Mr Richard Serra, THFC’s property and planning director. The food (without any alcohol) was provided from the canteen at the training centre.

Mr Serra explains in his witness statement the extensive contacts and relations between THFC and both the LPA and Haringey Council, in whose area the club’s stadium is located. It is quite normal for THFC (and other clubs within their local areas) to liaise extensively with local authorities on matters such as parking control, access arrangements for match days on highways matters, liaison with local police, liaison in relation to transport arrangements and sometimes allowing the stadium to be used for specific purposes, for example during the Covid pandemic.

Meanwhile, Mr Mark Saunders, who is linked to the claimant, had been seeking disclosure of documents from the LPA, under the Environmental Information Regulations 2004 (an EIR request), relating to ecological and biodiversity sensitivities of the application site, surveys undertaken, species to be protected, the report of the ecology officer, the BNG figures reviewed and the Plumb report. On 19 March 2025, the LPA sent these documents to Mr Saunders.

On 22 March 2025, at the invitation of Ms Cullen of THFC, Mr Davis – the outgoing chief executive – attended a competitive rugby match between Saracens and Harlequins, two top rugby teams. THFC’s estimate of the value of the hospitality is about £80 or £90, for similar tickets purchased on a commercial basis. The hospitality did not include any free food or drink.

The next day, again at the invitation of Ms Cullen, the then leader of Enfield Council, Councillor Ergin Erbil, and another councillor from the LPA attended a charity “Legends” match hosted by THFC, at its stadium. The match was between “Spurs Legends” and “AC Milan Glorie”. Mr Erbil was invited on 12 March 2025. He asked for and received tickets for a further four guests. The hospitality started in a VIP suite from 11am, with pre-match dining from 11.15am, and kick-off at 2pm; with half time and post-match refreshments and final drinks orders at 4.45pm. Mr Serra estimates the value of the hospitality at no more than £100.

On 3 April 2025, Mr Tillbrook made a further EIR request, asking for correspondence between the LPA and GS Ecology and the documents made available to members of the planning committee. On the same day, the claimant’s solicitors wrote to the LPA requesting reconsideration of the decision to grant planning permission, on various grounds which were not the same as those now pursued in this judicial review. On 22 April, in response the LPA disclosed various documents including, it appears, Mr Sutton’s ecological reports or at least one of them.

On 15 May 2025, the then chairman and board of directors of THFC invited Councillor Erbil to join them at the club’s stadium where they would be hosting the club’s victory celebrations on 23 May, in the event that Tottenham Hotspur should win the UEFA Europa League, due to be played against Manchester United in Bilbao on 21 May. There was much excitement about this match in parts of north London and beyond, especially as Tottenham Hotspur had not won a major trophy for some years.

Tottenham did win the Europa League final 1-0 and Councillor Erbil attended the celebrations. There was an open top bus victory parade that day. The expected itinerary set out in the invitation and, probably, the actual entertainment that day, is described in the invitation as follows:

“From 2.00pm: Arrivals at Tottenham Hotspur Stadium. Afternoon tea and refreshments available

3:00pm: Open-top bus parade begins at Edmonton Green. Guests will be able to view live footage on TV screens within the VIP reception area

4:30pm: Open-top bus parade returns to Tottenham Hotspur Stadium. Guests invited to the viewing balcony overlooking the trophy presentation area above the High Road

5:00pm: Trophy presentation

6:00pm: VIP Reception in the West Stand, Level 2.”

Unmoved by the claimant’s request that the planning application be reconsidered, the LPA issued its formal decision notice – i.e. the decision challenged in these proceedings – on 22 July 2025. A lengthy and detailed pre-action protocol letter from the claimant’s solicitors followed, dated 2 August 2025. At paragraph 10, all documents not already disclosed concerning the involvement of GS Ecology and Plumb Associates were sought, and the advice of the “Ecology Officer”, referred to in the officers’ report at paragraph 2.21.

The LPA responded that “[t]he proposed claim is entirely without merit and unarguable.” There was a response to each of the six grounds but no reference to the request for disclosure and, thus, no reference to the identity of the ecology officer mentioned in the officers’ report. A reminder to the LPA that the requests for information had gone unanswered was met with the response on 26 August 2025:

“the prospective claimants have already been provided with all of the information requested insofar as the same exists and so there is no further information to provide.”

When the request specifically relating to the ecology officer was repeated the next day, the LPA’s solicitor responded that he was “taking instructions” and “will revert to you on the question in due course”. On 28 August 2025, the claimant’s solicitor expressed surprise: “I cannot understand the delay in confirming this.” She probed further, seeking the full correspondence with Plumb Associates, among other things. The LPA’s solicitor repeated that he was taking instructions and would revert on the ecology officer point and that all other relevant information had already been disclosed.

The matter then became litigious. The claim was issued and pleadings were filed. It is unnecessary to set out the procedural history of the claim, save to say that on 11 February 2026, after Lang J’s order partially granting permission, the claimant’s solicitor wrote again to the LPA’s solicitor formally requesting to be told “[t]he identity of the “Ecology Officer” cited at paragraph 2.21 of the Officer’s Report” and setting out the history of her attempt to obtain an answer to this question, referring to the scope of the LPA’s disclosure obligations and the duty of candour.

After filing its detailed grounds of defence on 26 February 2026, the LPA filed a witness statement from Mr Samuel Wong (not his first statement), one of the LPA’s planning officers who had been heavily involved in THFC’s planning application. Mr Wong provided the LPA’s answer to the question the claimant’s solicitor had been asking since the pre-action protocol letter the previous August. Mr Wong stated at paragraph 6:

“As explained in the chronology provided with my first statement, during the determination of the application, the Council retained Mr Giles Sutton as its Ecology and Biodiversity Net Gain consultant, and he fulfilled this role in lieu of an in-house ecology officer. Reference to the ecology officer in the OR are references to Mr Sutton. Mr Sutton was satisfied with the proposal in all ecological terms save in relation to the calculation of Biodiversity Net Gain (“BNG”). I understand it is only BNG matters with which the Claim ground 1 takes issue, and not any other matters on which Mr Sutton provided ecological advice to the Council.”

At paragraph 7, Mr Wong stated:

“To summarise, despite a number of exchanges between Mr Sutton on behalf of the Council and the applicant’s ecology agent at Logika, disagreement remained as to the appropriate BNG calculation. Mr Sutton considered that the baseline could not be agreed due to perceived deficiencies in the applicant’s BNG report and differences in habitat classification, particularly in relation to woodland, when compared with the classification advanced by ecologist Mr Denis J Vickers on behalf of the amenity group Save Whitewebbs. Mr Sutton expressed the view that the development might not achieve a ten per cent BNG uplift, but he did not advise that this matter in itself warranted refusal of the application. Conversely, the applicant’s ecology agent, Logika, maintained that the submitted BNG evidence was reasonable and sound.”

The first ground of challenge is in two parts. I start with the first part. It is said of the “Ecology Consultation” report of Mr Sutton of 19 November 2024 and the Plumb report, that each was a “background paper” within section 100D of the LGA 1972. Further, the claimant says there was a breach of section 100D because those two reports were not listed as background papers and made publicly available. The claimant says it was materially prejudiced because it was hampered by ignorance of those documents in making its case before, during and after the planning committee meeting of 11 February 2025.

Section 100D of the LGA 1972 provides, as far as material:

“100D.

— Inspection and publication of background papers.

(1)

Subject, in the case of section 100C(1), to subsection (2) below, if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public, or are required by section 100BA(1) or 100C(1A) to be published electronically –

(a)

those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report,

(b)

in relation to a principal council in England, at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council, …

…

(5)

For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which—

(a)

disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

(b)

have, in his opinion, been relied on to a material extent in preparing the report,

but do not include any published works.”

For the claimant, Ms Jenny Wigley KC made the obvious point that section 100D is a transparency provision, whose purpose is “to ensure that documents upon which the OR is based are open to be viewed by members of the public” (per Lieven J, as she then was, in Hale Bank PC v. Halton BC [2019] EWHC 2677 (Admin) at [58]).

She also referred me to R. (on the application of Joicey) v. Northumberland CC [2015] PTSR 622 (Cranston J) at [51]; R. (Save Warsash and the Western Wards) v. Fareham Borough Council [2021] EWHC 1435 (Admin) (Jay J); R. (Holborn Studios) v. LB Hackney [2020] EWHC 1509 (Admin), per Dove J (as he then was) at [61]; and Juden v. Tower Hamlets LBC [2022] JPL 157, per Sir Duncan Ouseley at [46]-[50].

Ms Wigley submitted straightforwardly that Mr Sutton’s Ecology Consultation and the Plumb report both informed planning officers’ views on the BNG benefits of the scheme, which weighed positively in the planning balance and in officers’ Green Belt assessment. Both documents were relied on by officers. While it is for officers initially to judge what documents are background papers, the statutory definition must be respected and “there will often be only one possible rational answer” (per Eyre J in R. (Wild Justice) v. Pembrokeshire Coast NPA [2025] EWHC 2249 (Admin) at [58]).

That was the position here, Ms Wigley said. She referred to views attributed to the “Ecology Officer”, i.e. Mr Sutton, at paragraphs 2.21, 6.21 and 8.100 where the impression is given that the views of that officer and those in the “independent audit report” (i.e. the Plumb report) are aligned. The absence of any specific objection to the application by the Ecology Officer is relied upon as a positive point in favour of the proposed development. It was particularly material that Mr Sutton had been engaged by the council and had preferred Mr Vickers’ analysis of the BNG issue to Logika’s.

Ms Wigley reproached the LPA with “salami slicing” Mr Sutton’s views, cherry picking his observation that he did not object to the application but omitting to mention the parts of his Ecology Consultation that the LPA did not support. The position is different where (as in the Juden case) an earlier draft of a report is in issue, or where an officer has had a change of mind embodied in a later version of a report. That was not the position here.

As for the Plumb report, it was self-evidently a background paper. Mr Wong himself states at paragraph 5 of his first witness statement:

“On 20 December 2024, the Council received Mr Plumb’s Independent Audit report. The report confirmed that the applicant’s BNG submissions were sound and sufficient for the Council to make an informed decision.”

As for the requirement of material prejudice to a claimant arising from the withholding of a background paper, Ms Wigley submitted that there was no requirement for the claimant to place before the court what it would have said against the proposals if it had been aware of the omitted background papers; but that, in any case, Mr Russell Miller of the claimant had given clear evidence on the point in September 2025, even before the claimant had all the relevant information and before they knew that the “Ecology Officer” was Mr Sutton:

“15.

We now know that the professional ecologist to whom the council went for an independent view on THFC's claims advised that the claims of 33% biodiversity net gain from the proposals are based on questionable baseline assumptions. Had we known this prior to the Planning Committee meeting, we would certainly have diverted some of our very limited resources into commissioning a report from a specialist to provide to the Planning Committee. BNG is still new and relatively few ecologists have the expertise to deconstruct flawed BNG calculations. The consequence of the Council failing to disclose the report questioning the BNG claims is that proper scrutiny of the contested BNG claims was prevented and the Planning Committee was deprived of proper discussion of these issues.”

For THFC, Mr James Maurici KC said Mr Sutton’s concerns about the achievable BNG did not lead him to object to the scheme in consequence. He said in correspondence that he was “not objecting to the application as such”. He did not present any separate technical analysis. He did not perform his own BNG calculations. His commentary was, in Mr Maurici’s phrase, “pure assertion”. His concerns were “refuted” by Logika’s work, Mr Maurici argued.

Further, Logika’s assessment of the anticipated BNG was endorsed in a third party independent review by Plumb. Mr Sutton’s views on the BNG issue were not part of the decision making process. His report was not relied on and was therefore not a background document. The LPA did disclose, in April 2026, that he was the Ecology Officer referred to in the officers’ report.

Further, a failure to comply with section 100D(1)(a) and/or (b) does not automatically render a subsequent decision unlawful or liable to be quashed: see Worcestershire Acute Hospitals NHS Trust v. Malvern Hills DC [2023] EWHC 1995 (Admin), per Holgate J (as he then was) at [141]-[142]. The legal effect of any such breach depends on the circumstances. The court must consider whether there has been substantial compliance and, if not, whether the breach has caused the claimant material prejudice.

Mr Maurici pointed out that a draft of a committee report is not a background paper within section 100D (Juden v. Tower Hamlets LBC, at [48]). Nor are the original views of an officer which subsequently change (ibid. at [58]). It is for the relevant officers, not the court, to decide what is a “background document”. Whether or not a particular document is one or not is an “evaluative judgment” for the proper officer, applying the statutory tests in section 100D of the LGA 1972, as Fordham J explained with detailed reasoning in R. (Kinsey) v. Lewisham LBC [2022] EWHC 1774 (Admin) at [40].

Where no list of background papers is prepared, said Mr Maurici, there can still be substantial compliance with the requirements of s.100D(1)(a) in respect of documents mentioned in disclosed reports, as this enables a request to inspect them: Worcestershire Acute Hospitals NHS Trust per Holgate J at [120]. The obligation to make a document open to inspection includes the existence of arrangements for producing a document to a member of the public after a request is made to inspect.

Further, non-compliance does not necessarily lead to invalidity of the decision to grant planning permission: ibid. at [137]-[145]. The consequences of failure to comply with a statutory requirement depend on construing the statute in play, in line with authorities such as R. v. Soneji [2006] 1 AC 340. The answer may depend on the extent of the non-compliance and on the degree of prejudice, if any, resulting from it.

Mr Maurici contended that if the prejudice asserted is loss of the opportunity to comment, the question arises whether there was anything significant the complainant might have wished to say: Greenfields (IOW) Ltd v. Isle of Wight Council [2025] PTSR 2013, per Lewis LJ at [63]-[66]. Where a claimant relies on material prejudice of this type, Mr Maurici submitted, it must provide actual evidence as to what it would have said: R. (Midcounties Co-operative Ltd) v. Wyre Forest DC [2009] EWHC 964 (Admin): per Ouseley J at [94]-[97].

Following on from those submissions of law, Mr Maurici made four submissions of fact. First, he submitted, neither of the two reports disclosed facts or matters on which, in the opinion of the proper officer, the report or an important part of it was based; nor was either report relied on to a material extent in preparing the officers’ report. Mr Sutton’s Ecology Consultation became a consultant’s earlier or superseded view of the BNG issue.

Mr Sutton’s views on that issue were not relied on at all, let alone “to a material extent”. Nor did they disclose facts or matters on which the officers’ report or any part of it was based. Mr Sutton’s views were overtaken by the Plumb report, said Mr Maurici. The superseding of views in an earlier draft or report is, he submitted, not confined to earlier drafts prepared by the same author. It does not matter that Mr Sutton was asked whether his advice had changed.

As for the Plumb report, that too was not a background document within LGA 1972 section 100D. It merely reviewed and endorsed Logika’s views in its advice about the calculation of anticipated BNG. The court must not substitute its view for that of the proper officer. The claimant, said Mr Maurici, cannot show that the decision not to treat either report as a background document was Wednesbury unreasonable. A background paper does not include any document discussed in an officers’ report.

Second, Mr Maurici submits in the alternative that if either document was a background paper, there was substantial compliance with section 100D because the officers’ report referred to an independent audit report; a reference sufficient to trigger a request prior to the committee meeting (informal or by an EIR request) for its production by anyone interested. No such request was made to see either report. The claimant did not express interest in them until long after the decision to grant planning permission.

Third, Mr Maurici submitted that even if both documents were background papers and there was not substantial compliance with section 100D, the consequence is not invalidity of the decision to grant planning permission because the claimant cannot show that it has suffered material prejudice from the breach of section 100D. There was nothing material the claimant might have wished to say.

Mr Maurici submitted that Mr Miller’s evidence does not complain of prejudice from not seeing the Plumb report prior to the committee meeting and does not indicate what more the claimant might have said had it been in possession of that document prior to the meeting; which is not surprising, since that report fully supported THFC’s technical analysis. As for Mr Sutton’s Ecological Consultation, that added nothing to Mr Vickers’ report, which the claimants had seen and were able to rely on at the committee meeting.

Moreover, said Mr Maurici, when the claimant did obtain sight of the Plumb report and emails from Mr Sutton disagreeing with its assessment of likely BNG, well before the planning permission decision was formally issued, the claimant became “the dog that didn’t bark in the night”; it did not commission a further report and ask the LPA to stay its hand before issuing the formal permission decision. If the claimant had anything new to add in a further report, the LPA could have considered it and whether it should revisit its decision.

Fourthly, THFC submits that if all the above points do not find favour with the court, still relief should be refused under section 31(2A) of the SCA 1981 because it is highly likely, indeed inevitable, that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred.

In support of this latter submission, THFC no longer relies on the opinion of its expert witness (to which the claimants objected) from Mr Alan Kirby of Logika. Mr Kirby made a witness statement in these proceedings explaining why, in his expert opinion, Logika was right and Mr Sutton was wrong in their respective assessments of the extent of likely BNG from implementing the proposals.

Instead, Mr Maurici submits that without the need for the court to be influenced by Mr Kirby’s opinion, nonetheless the planning committee would be highly likely to have come to the same view if the two reports had been available to the claimant before and at the planning committee meeting on 11 February 2025; nor was there any real possibility that the LPA’s view would have been revisited after the meeting and the decision altered.

Such were the rival contentions of the remaining parties in this claim, which I have carefully considered. I come to my reasoning and conclusions on ground 1(a). Some preliminary points should be mentioned in relation to section 100D of the LGA 1972. First, any “background papers” must be contained in a list; and the list must be compiled by the “proper officer”. The “proper officer” is (see section 270(3) LGA 1972) “in relation to any purpose …. an officer appointed for that purpose”.

Here, it appears that Ms Williams may well have been the proper officer, even though she was not an officer in the sense of being employed as one of the LPA’s planning officers. Neither of the two active parties before me dissented from that view. It is also arguable that it could be Ms Karen Page, the LPA’s head of planning and as such possibly given that role under a scheme of delegated powers, which I have not seen.

I note that Ms Williams was responsible for the officers’ report though no doubt others contributed draft text to it. It appears to have been peer reviewed and, ultimately, it may be that Ms Page was responsible for it in its final form. I mention this issue not because it matters particularly who was the “proper officer” for section 100D purposes, but because, whoever it was, there is no evidence that any list of background papers was compiled.

Background papers are documents which “in the opinion of the proper officer” meet the tests in subsection (5)(a) and (b). The opinion must be rational and there have been cases where the answer is obvious so that there can be only one rational answer. In the present case, the evidence that any consideration was given to section 100D by anyone is scant to say the least. There was no list. There is no witness statement from Ms Williams or Ms Page.

The second statement of Mr Wong addresses the professional disagreement between Mr Sutton and Logika but says nothing directly about section 100D or background papers. The position is different from R (Kinsey) v. Lewisham LBC where (per Lang J at [104]) a list was compiled and a planning officer made a witness statement about what documents were considered to be, or not to be, background papers and why. There is no equivalent to that evidence here.

Against that background, I consider first whether the ecological report produced by Mr Sutton was a “background paper” for the purposes of section 100D of the LGA 1972. In my judgment, it was. The disagreement about achievable BNG first arose in July to October 2024. It was a disagreement between the LPA, through its agent Mr Sutton, and the developer, through its agent Mr Brookes. The views on BNG were far apart: from zero or under 10 per cent to over 27 per cent. The disagreement was important because inadequate BNG was one of the objectors’ major grounds of objection, based on the view of Mr Vickers.

The disagreement could not easily be glossed over or wished away. Attempts in November 2024 by the LPA, through Ms Williams, to resolve the issue between Mr Sutton and Logika did not succeed. Mr Sutton was not objecting to the application “as such”, he said in an email of 19 November 2024; but he did not agree that a BNG of 33 per cent or more could be claimed. That meant that if in the officers’ report that view were attributed to him, expressly or by implication or omission, his view would be misrepresented.

As we know, it was claimed in the officers’ report. I find that Mr Sutton’s views were misrepresented because he was said several times in his role as “Ecology Officer” not to object to the application on ecology grounds. The advent of the Plumb report did not alter Mr Sutton’s views. He did not consent to being described as the “Ecology Officer” and was not asked to consent. He was not consulted about the Plumb report, nor shown a draft of the text in the officers’ report referring to his role in the planning application.

The LPA sought, by means of the Plumb report, to sideline Mr Sutton’s objection to the claim that 33 per cent or more BNG could be achieved. Yet, the LPA invoked his name, in the guise of “Ecology Officer” and without his consent, as a means of giving credence to that claim. By not mentioning the Ecology Officer’s disagreement with the 33 per cent plus BNG claim, the committee were given the false impression that he did not disagree with it.

I agree with Ms Wigley that a local planning authority may not avoid a document being a background paper by “salami slicing” its content, relying in the officers’ report on the convenient parts and concealing from the committee the inconvenient parts. That is what happened in this case. The LPA was coy and reluctant about disclosing the identity of the so-called Ecology Officer. It did not want the objectors to detect the scent of the disagreement about BNG. Until it abandoned its defence to this claim, it strove to keep Mr Sutton’s true views quiet, while maintaining that the Ecology Officer had “no objection”.

For those reasons, Mr Sutton’s ecological report was, on any rational view, a document relating to the subject matter of the report and disclosing facts or matters on which, in the opinion of the proper officer, if she had considered the issue rationally, an important part of the report – the BNG issue – was based; and was a document relied on to a material extent – to show the non-objection of the Ecology Officer - in preparing the report. I accept Ms Wigley’s submission that the position here is wholly different from a case where an officer changes her mind or where a draft document evolves into its final form. I reject Mr Maurici’s attempt to liken the two unlike situations.

I accept the submission that the Plumb report was also a background paper. It was clearly heavily relied on by officers; the officers’ report repeatedly said as much, albeit without naming Plumb. It is not arguable that it was other than a background paper, meeting the statutory definition. It did not merely reaffirm the earlier reported views of Logika, expressed on THFC’s behalf, i.e. the applicant’s behalf; it endorsed those views in the name of the LPA itself. The issue of BNG was a significant part of the intended public benefit of the scheme.

I am conscious that non-compliance with the obligation under section 100D to list background papers for public inspection before the relevant meeting does not necessarily lead to invalidity of a planning committee’s decision. The authorities are clear on that point. If the only non-compliance had been a failure to list the Plumb report as a background paper, I would have held that the non-compliance was not such as to invalidate the committee’s decision. The gist and content of that report were made very clear in the officers’ report, though without naming the author. The breach of the obligation was venial.

The same cannot be said of the failure to list Mr Sutton’s ecological report. It was important for the public to have access to it before the meeting precisely because its content was not correctly represented in the officers’ report. The non-compliance was serious in that instance. I do not agree with Mr Maurici that it lacked significance because the objectors could obtain it after the meeting and then ask the committee to change its mind. That is an unrealistic suggestion in view of the post-decision history, which I have outlined above.

I also accept the claimant’s submission that it suffered material prejudice by the non-disclosure. Objectors were bereft of credible evidence to refute the claimed 33 per cent plus BNG. They still had Mr Vickers’ views on that issue, but those had been effectively declared wrong in the officers’ report, by means of the repeated citation of the views in the Plumb report which, officers assured the committee, were sound. I accept the unchallenged evidence of Mr Miller of the claimant that the claimant now considers the 33 per cent plus BNG claim in the Plumb report to be based on “questionable baseline assumptions” and that:

“… we would certainly have diverted some of our very limited resources into commissioning a report from a specialist to provide to the Planning Committee. BNG is still new and relatively few ecologists have the expertise to deconstruct flawed BNG calculations. The consequence of the Council failing to disclose the report questioning the BNG claims is that proper scrutiny of the contested BNG claims was prevented and the Planning Committee was deprived of proper discussion of these issues.”

THFC is therefore wrong to submit, through Mr Maurici, that the claimant does not complain of prejudice and that there is nothing that it could or would have usefully said if Mr Sutton’s ecological report had been disclosed. That leaves the submission that its disclosure would have made no difference to the outcome and that relief must therefore be refused under section 31(2A) of the SCA 1981. I have considered this in the light of the Court of Appeal’s recent observations in R. (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489, [2025] 4 WLR 58, especially at [71]-[72].

THFC correctly conceded that the court should disregard the expert opinion evidence from Mr Kirby of Logika, repeating the view that Logika was right and Mr Sutton wrong. That is an issue of planning judgment, in the “forbidden territory” the court must avoid entering when applying section 31(2A). The minutes of the planning committee meeting suggest that the BNG issue was part of the battleground in the debate, which was spirited. The decision was by a majority of seven to four, with one abstention. I do not know whether it would have been the same if Mr Sutton’s ecological report had been on the table.

The second part of the first ground of challenge is, in essence, that the members of the planning committee were materially misled by what was said in the officers’ report and in particular what was not said about Mr Sutton’s views on the BNG issue. That, it is said, caused the committee to overlook and disregard the mandatory considerations omitted from the report; and meant that the reasons for the decision to grant the planning application were inadequate.

Ms Wigley submitted that the officers’ report did not mention, let alone engage with, Mr Sutton’s concerns, his agreement with Mr Vickers’ views and his view that Logika’s figure of a 33 per cent BNG was “counterintuitive” considering how much of the park would be lost to the development. Instead, the officers’ report stated without qualification (2.22) that the BNG would be around 30 per cent and that the information to that effect was reliable. There was no mention of any dispute about that figure from the LPA’s Ecology Officer.

At 8.107, said Ms Wigley, officers referred to “extensive discussions and engagement” in relation to the information prepared to address “the ecological and biodiversity sensitivities of the application site”. It was said that there was “no objection to the proposed development” and that this had been “confirmed by the Ecology Officer” as well as the “Independent Audit Report”. It was misleading, said Ms Wigley, to refer to Mr Sutton having “no objection” when he was disputing Logika’s figures and their endorsement in the Plumb report.

Ms Wigley submitted that Mr Sutton was right to complain on 11 February 2025 that his advice was not reflected in the officers’ report and to question whether the Ecology Officer was a reference to him. He clearly felt, correctly, that his views had been misrepresented if he was the Ecology Officer. The officers’ report, said Ms Wigley, “presented an inaccurate picture to members that there were no concerns about the purported BNG benefit, when in fact there was a significant dispute among the Council’s own experts”.

She pointed to other passages in the report where, she submitted, the committee was misled by omission in the same way. These have already been mentioned when considering ground 1(a). It is misleading to present to the committee what appears to be a conclusive and unanimous view among the relevant experts advising the LPA without referring to disagreements between them. The position is different from a case where an officer has a change of mind and agrees to changes from an earlier draft of an advice document.

Ms Wigley submitted:

“It is … obviously misleading to give the clear impression to the Committee that the Council’s ecology officer supported the conclusion on BNG when the complete opposite was true.”

Further, she said, a local authority should not “shop around” for an expert to get round a problem of earlier inconvenient unfavourable advice from a different expert; but if it does, it should not conceal and suppress the earlier advice.

For THFC, Mr Maurici started with the usual well established principles and authorities concerning the interpretation of planning policies, their application and the approach the court should take to officers’ reports. These principles are not controversial and too well known to require setting out in full. I am guided by them. Thus, while the interpretation of planning policies is for the court, the exercise of planning judgment is the exclusive province of the local planning authority: Bloor Homes Ltd v. Secretary of State [2017] PTSR 1283 per Lindblom J (as he then was) at [19(3)].

Officers’ reports must be read with benevolence, without excessive legalism, without undue rigour and without over-complicating concepts that are basically simple. Mr Maurici referred to, among other authorities, observations of Lindblom LJ (as he had by then become) in East Staffordshire BC v. SSCLG [2018] PTSR 88 at [50]; St Modwen v. SSCLG [2017] EWCA Civ 1643 at [7]; and Mansell v. Tonbridge & Malling DC [2019] PTSR 1452, at [42].

Thus, he reminded me, minor or inconsequential errors are excused. The court will only interfere if there is material misleading. The court must focus on the substance of what is said in the report, not requiring elaborate citation from background materials. As for reasons, they may be briefly stated; they need not refer to every material consideration and may express conclusions on only the principal important controversial issues (South Bucks DC v. Porter (No 2) [2004] 1 WLR 1953, per Lord Brown at [46]).

Mr Maurici submitted that the allegation of misleading the committee was not made out. Mr Sutton’s disagreement with Logika and Plumb Associates was narrowly confined to the BNG benefit issue, not any wider issue. His views were not compulsory material considerations. They were “past consultee advice” which was “superseded” and “not relied upon in the OR”. What mattered was the final view of officers informed by relevant technical evidence. That was properly set out in the officers’ report, he submitted.

It was not, said Mr Maurici, materially misleading not to include Mr Sutton’s earlier views on BNG. There must, he said, be “a ‘safe space’ for public authorities to debate and consider matters and that may involve the evolution of their view following advice”. Officers were not bound to include every stage of the process leading to their final view and advice to members in the officers’ report. Mr Sutton’s disagreement on BNG did not inform that view and was not therefore required to be included in the officers’ report.

Nor, said Mr Maurici, was it misleading to say that the Ecology Officer had “no objection to the application”. Mr Sutton had made it clear that his views on the BNG issue did not mean he was objecting to the application as such. The mandatory 10 per cent level could be secured by condition or agreement and planning practice guidance indicated, as he had recognised, that it was not normally appropriate to refuse permission on a BNG ground alone.

Mr Maurici submitted that this ground proceeded from the wrong premise that officers were bound to set out Mr Sutton’s BNG views. While the officers’ report at 6.13:

“compressed the position by recording the ecology consultee response alongside the 33% BNG figure, the material point for members was that there was no ecological objection and that BNG had been independently audited.”

Alternatively, said Mr Maurici, I must refuse relief because it is highly likely that if the conduct complained of had not occurred – i.e. if Mr Sutton’s BNG views had been included – the outcome would have been the same. He no longer relies on the expert opinion of Mr Kirby on this issue, but says the committee would inevitably have been of the view that very special circumstances were made out; the BNG benefit had been independently audited and, further, formed only a relatively small part of the overall benefit providing the very special circumstances justifying this Green Belt development.

I record the submissions quite fully and have kept to the order in which the grounds were addressed by the parties. However, my reasoning and conclusion on this second part of the first ground of challenge travels much of the same ground as the first part of the ground, addressed above. Even if I am wrong, for some reason, in my conclusion that Mr Sutton’s report was a “background paper” within LGA 1972 section 100D, my reasoning above leads to the conclusion that the committee was materially misled by omitting his views on the BNG issue from the officers’ report.

Mr Maurici rightly said the three limbs of ground 1(b) in practice are likely to stand or fall together. They are, I remind myself, (i) were committee members materially misled about Mr Sutton’s concerns; (ii) were his concerns mandatory material considerations; and (iii) if so, did the LPA provide inadequate reasons for its decision? In my judgment, the answer to those three questions is yes, essentially for the reasons advanced by Ms Wigley for the claimant and for the reasons I have already given when addressing ground 1(a).

I cannot accept that the wrong impression given in the report is inconsequential or minor or just a matter of linguistic infelicity. If that was all it was, the LPA would not have gone to the trouble of omitting Mr Sutton’s views from the officers’ report and would not have sought to avoid and deflect the issue in correspondence with the claimant’s solicitors after the meeting, over a protracted period. To portray him as the anonymous “Ecology Officer” was clearly a deliberate and considered decision, not just a minor drafting point.

I have considered carefully Mr Maurici’s submission that the BNG issue had been independently audited and formed only a relatively small part of the overall benefit providing the very special circumstances justifying this Green Belt development. I am not able to accept that submission. This was a proposal to turn part of the park into buildings and football pitches. Biodiversity is always likely to loom quite large where construction of that kind is proposed on Green Belt land.

So it did here; hence the trouble the LPA went to on the issue. Again, the outcome could well have been different if Mr Sutton’s views had been available at the meeting on 11 February 2025. For those reasons, both the first part of the first ground (1(a)) and the second part of that ground (1(b)) succeed. The second, third and fourth grounds are narrower in compass; they assert errors of approach in applying local and national policies. I turn to them next.

The claimant submits that the LPA misinterpreted or misapplied DMD Policy 84. It is part of the LPA’s suite of local policies in the Local Plan and deals with “Areas of Special Character”. It provides:

“New development within the Areas of Special Character will only be permitted if features or characteristics which are key to maintaining the quality of the area are preserved and enhanced.”

The supporting text provides:

“11.3.1

Enfield has a rich and diverse range of landscape types. The borough's unique character is strongly influenced by its topography. Parts of the borough which are important for their historic landscape character and rural character have been designated as Areas of Special Character. These are:

…

Whitewebbs Park and Forty Hall

Information of the characteristic traits for each of Enfield's Areas of Special Character can be found in the Enfield Characterisation Study (2011).”

The claimant then points to the characteristics of the park in the Characterisation Study: large areas of parkland; mature and veteran parkland trees; landscapes with a strong focus on recreational activities; substantial areas of woodland; small areas of formal ornamental design; and substantial areas of large scale designed landscape. The text continues:

“The undulating topography and complex pattern of woodlands, open areas, historic features and formal gardens creates a varied landscape full of interest and diversity. … The borough’s rural parklands should be retained and protected against future development.”

For the claimant, Mr Shattock submitted that DMD Policy 84 restricts development within the park which is an “Area of Special Character”. Any new development there must preserve and enhance its key features and characteristics. There must be consideration of those key features and characteristics and of whether and if so how the proposed development would preserve and enhance them.

That did not happen here, Mr Shattock submitted. In the officers’ report, DMD Policy 84 was mentioned but not separately considered. Officers’ consideration of landscape matters (8.85-8.88 in the officers’ report) posed the question whether the development would or would not “result in residual adverse impacts” and concluded (8.88) that it would not.

That, said Mr Shattock, was a misinterpretation or misapplication of DMD Policy 84. The question required to be asked was a positive one, whether the park’s key characteristics and features would be preserved and enhanced; not the negative question asked: whether the development would result in residual adverse impacts on landscapes.

For THFC, Mr Maurici submitted that the claimant’s argument proceeds from a misreading of Policy 84; that it is a landscape related policy; that it was directly addressed in the officers’ report, at 8.85-8.88; and that, furthermore, the officers’ report must be read as a whole and landscape considerations permeate that report.

As for the interpretation of Policy 84, the requirement to preserve the area’s relevant features is met if there is no adverse effect on them. The requirement to enhance them should in Mr Maurici’s words “be read as a positive planning objective to be pursued where proportionate and feasible, not as some absolute bar to a neutral, no-harm scheme unless the policy expressly and unambiguously imposes such a requirement.”

That interpretation, Mr Maurici argued, is consistent with the NPPF. The LPA’s local policies should be read in harmony with relevant national policies, which are mandatory considerations. The relevant local policies should not be read as disapplying or overriding national policies. Phrases such as “conserving and enhancing”, “contribute to and enhance”, “protecting and enhancing” and the like (appearing in chapter 15 of the NPPF, December 2024 version) are read as setting objectives and protections not rigid prohibitions.

Mr Maurici took me to many other paragraphs elsewhere in the officers’ report where landscape benefits from the proposals are set out: new paths, facilities, improved landscaping and seating and long-term management and maintenance of the site (see 2.18); as well as support from the LPA’s parks and leisure team (6.11); the landscape officer’s conclusion (6.17) that the residual impact by year 10 would be slightly beneficial and acceptable against policy; and detailed scrutiny of planting and mitigation proposals.

The claimant’s approach to Policy 84 is excessively legalistic and tainted with exegetical sophistication, Mr Maurici submitted. It should be read in a down to earth straightforward manner. Even if the officers’ report did not adequately address Policy 84, relief must be refused, again applying section 31(2A) of the SCA 1981 because the outcome would have been the same if that policy had been adequately addressed.

I can deal with this ground very shortly, because I accept Mr Maurici’s submissions on all points. As he points out, DMD Policy 84 is not a straitjacket. There is no difficulty with the finding that the proposals would have no adverse impact on the relevant features of the area. It expresses the part of Policy 84 where the word “preserved” is used. Mr Maurici is right to say that the concept of enhancement goes hand in hand with that of preservation, or conservation, or protection of the features of an area, in various phrases used in the equivalent provisions of the NPPF; and that these provisions are mandatory considerations.

Likewise, the concept of enhancement of the features of an area features in the equivalent NPPF provisions, alongside that of preservation. It expresses the obligation on planners to look for positive landscape gains as well as the absence of adverse impact on the landscape. The officers’ report is replete with references to such gains and it is pedantic and legalistic to require those references to be tied to a citation of Policy 84. I do not find any merit in this second ground of challenge.

In the third ground of challenge, Mr Shattock submitted that the LPA misinterpreted or misapplied DMD Policy 44. It deals with heritage and built environment and is headed “Conserving and Enhancing Heritage Assets”. The text then continues:

“1.

Applications for development which fail to conserve and enhance the special interest, significance or setting of a heritage asset will be refused.

2.

The design, materials and detailing of development affecting heritage assets or their setting should conserve the asset in a manner appropriate to its significance.

3.

All applications affecting heritage assets or their setting should include a Heritage Statement. The applicant will also be required to record and disseminate detailed information about the asset gained from desk-based and on-site investigations. Information should be provided to the Local Planning Authority, Historic Environment Record and English Heritage. In some circumstances, a Written Scheme of Investigation will be required.”

The claimant says DMD Policy 44 goes further than chapter 16 of the NPPF (“Conserving and enhancing the historic environment”); Policy 44 protects designated and non-designated heritage assets within the borough, without distinction. Thus, the supporting text reads at paragraph 6.5.1: “Heritage assets include designated heritage assets and non-designated assets identified by the local planning authority”. Chapter 16 of the NPPF, by contrast, applies a hierarchy of protection to heritage assets, placing designated assets at the top.

Policy 44, said Mr Shattock, also goes beyond the provisions in NPPF chapter 16 by requiring refusal of any planning application which does not conserve and enhance the special interest, significance or setting of a heritage asset; while the NPPF applies the well known “clear and convincing justification” test to applications that cause “any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting)” (NPPF paragraph 213).

Mr Shattock therefore submits that any harm to a heritage asset in the borough of Enfield must entail refusal of the application under Policy 44; while harm to a heritage asset does not necessarily entail refusal of the application under the NPPF provisions. This is, he said, acknowledged in the officers’ report at 8.132, which includes the passage: “DMD 44 advises applications for development which fail to conserve and enhance the special interest, significance or setting of a heritage asset will be refused … .”

The LPA, said Mr Shattock, misapplied or misinterpreted Policy 44 because the assessment in the officers’ report used the tests set out in the NPPF instead; see paragraphs 8.136-8.155. In those paragraphs, officers assess the level of harm to the designated heritage assets against the level of benefit to the public which the development would bring. THFC was thereby absolved from having to meet the stricter requirement under Policy 44 that permission must be refused unless the development would “conserve and enhance the special interest, significance or setting of a heritage asset”. There is no balancing exercise to be carried out when applying Policy 44, unlike the approach ordained in the NPPF.

The LPA fell into further error, Mr Shattock submitted, because it proceeded (at 8.156) on the wrong basis that a non-designated heritage asset such as the park is accorded a lower level of protection than a designated one. While this is the position under the NPPF, it is not the position under Policy 44. That, said Mr Shattock, was a misinterpretation or misapplication of Policy 44. The absence of the distinction was a mandatory relevant consideration which the LPA unlawfully disregarded, he submitted.

The error, he said, was particularly significant, he said, because officers found that the level of harm to the park would be “very high” and to Whitewebbs House would be “high” (officers’ report at 8.157). The application should have been refused outright under Policy 44 because the proposals would not conserve and enhance the special interest, significance or setting of the affected heritage assets.

For THFC, Mr Maurici’s arguments were similar to his answers to ground 2, above. DMD Policy 44 does not impose a rigid “pass or fail” test. Nor does Policy 44 say that heritage improvements cannot render a proposal compliant with the policy even where some heritage harm is identified. There is nothing in the policy which, says Mr Maurici, “excludes consideration of improvements or benefits as part of the judgment whether the policy is complied with.”

The interpretation of Policy 44 should not be a “forensic and prescriptive exercise”, he said. It requires a broad planning judgment as to whether the application, viewed as a whole, delivers results that conserve and enhance the special interest, significance or setting of a relevant heritage asset. Again, the decision maker was entitled to apply the relevant NPPF criteria and requirements even if these are omitted from local policies.

The officers’ report dealt fully and adequately with heritage issues and properly addressed the territory of Policy 44. There is no basis for any accusation that it was misapplied or left out of account. Even if it was, again Mr Maurici relies on section 31(2A) of the SCA 1981: relief should be refused anyway.

Again, I accept THFC’s submissions on this ground and I do not find merit in the claimant’s contentions. It is, once again, unpromising for a party to submit, based on linguistic arguments, that a local policy is significantly at odds with and more prescriptive than the equivalent provisions in the NPPF, so that planning applications that could be granted applying the latter must be refused applying the former.

Heritage issues were addressed in detail in the officers’ report. I see no misinterpretation of Policy 44 and no mileage for the claimant in the distinction between designated and non-designated heritage assets. I dismiss the third ground of challenge.

It is common ground that the site is on Green Belt land. The development was therefore inappropriate unless (by NPPF paragraph 154(b)) it comprises buildings for outdoor sport and recreation that preserve the openness of the Green Belt and do not conflict with the purposes of including land within it. Where development is inappropriate, very special circumstances are required; if they are absent, the development should not be approved (paragraph 153).

In this fourth ground of challenge (developed in writing but not in oral argument), Mr Shattock submitted that there was no rational justification or adequate reasoning to support the conclusion in the officers’ report at 8.10, Table 2 and 8.11, that the proposed football pitches, gatehouse, café, public toilets, community room and operational link constitute “appropriate development” and therefore cause “no harm”.

No reasoning was provided to support those conclusions, said Mr Shattock. The implicit conclusion is that these facilities, in the words of NPPF paragraph 154(b), “preserve the openness of the Green Belt and do not conflict with the purposes of including land within it.” That was plainly wrong because largely private football pitches and associated infrastructure would clearly impact on the openness of the Green Belt. THFC had acknowledged in its planning application that there would be permanent loss of some parkland.

Mr Maurici, for THFC, pointed to the comprehensive Green Belt assessment at 8.2 to 8.67 in the officers’ report. It was obvious that harm to the openness of the Green Belt was identified, making the development inappropriate and bringing into play the very special circumstances test which was found to be met based on detailed reasoning, a conclusion that is not directly challenged in this judicial review. The ground lacks merit and in any event would be met with a refusal of relief under section 31(2A) of the SCA 1981.

I cannot see any merit in the claimant’s contention that the LPA found no harm to the Green Belt would be done if planning permission were granted. The officers’ report says otherwise. The lengthy and detailed consideration of Green Belt issues identifies several categories of harm to the Green Belt, of varying potency. Consideration is then given to the countervailing benefits, applying the measure of “very special circumstances” required to override the harm to the Green Belt. The fourth ground does not stand up to scrutiny. I dismiss it.

The law relating to apparent bias or predetermination is too well known to be the subject of extensive citation here. There was no disagreement between the parties as to the applicable principles and that they are to be found in the various authorities cited to me: among others, Porter v. Magill [2002] 2 AC 357, per Lord Hope at [103]; and in the planning context, R. (Condron) v. National Assembly for Wales [2007] 2 P & CR 4 (the judgment of Richards LJ); and R. (Lewis) v. Redcar and Cleveland BC [2009] 1 WLR 83, per Pill LJ at [43]-[60] and [62]-[69]; per Rix LJ at [95]-[98]; and per Longmore LJ at [105]-[109].

I do not find it necessary to restate at length the propositions and principles for which those cases are authority. A predisposition towards a particular outcome is not itself predetermination, particularly in the planning context. The question is, essentially, whether the LPA approached its task with a closed mind and was prejudiced in favour of the application and against refusing it, for reasons unconnected with its merits; i.e., to put it another way, whether the committee acted in such a way that the LPA could not exercise a proper discretion.

The decision was that of the planning committee. The four occasions on which hospitality was offered and accepted by senior officers and the then leader did not include participation by any members of the committee. The claimant accepted that. But Mr Shattock invited me to take into consideration incidents showing hostility to the work of Mr Sutton before the committee’s decision: namely his disagreement with Ms Williams expressed in his email of 3 May 2024 and the exclusion of his views on BNG from the officers’ report.

The claimant also relied on the closeness of the relationship between THFC and the LPA, both generally and in particular between an officer, Mr Mark Bradbury, who had posted on LinkedIn that discussions with THFC on the subject of Whitewebbs went back to the era before Covid (which started in early 2020).

All these factors pointed starkly in the direction of predetermination, Mr Shattock submitted. It did not assist the LPA that the acceptance of hospitality occurred after the committee’s resolution to grant permission on 11 February 2025. The actual decision to issue the permission was made in July 2025, after the hospitality had been accepted. The section 106 agreement was still being considered, at the time the hospitality was offered and accepted.

Mr Shattock relied on a guidance note on gifts and hospitality warning against accepting hospitality “if acceptance might be open to misinterpretation” or accepting gifts worth more than a trifling amount. While a Premier League club would have a close relationship with the local authorities in the area, that does not have to extend to acceptance of gifts and hospitality in what Mr Shattock said was a breach of the LPA’s code of conduct, paragraph 13.2 of which requires compliance with “the Council’s agreed policy on gifts and hospitality”.

Mr Maurici submitted that Lang J was right to refuse permission for this ground. In the four cases where hospitality was provided by THFC to councillors and officers, the hospitality was modest; it was normal for a local authority to have cordial relations with a major football club in or near its area; none of the planning committee members partook of it; and each of the four events postdated the committee’s decision. The guidance note was in disuse and irrelevant. The committee was able to and did exercise a proper discretion.

I have concluded that the assertion of apparent bias is just arguable, but the arguments are weak and do not succeed. The starting point must be to recognise that grant of planning permission was fundamental to the land deal between the LPA and THFC, which was found lawful by Mould J. Without planning permission, THFC would not acquire any interest in the site and the rationale of the deal would be negated. The LPA would keep the land. The whole project was dependent on planning permission being granted. This creates a natural predisposition in favour of the application, but that is not a predetermination.

Next, I do not think the contretemps between Ms Williams and Mr Sutton arising from the meeting attended by both and by THFC’s agents on 26 April 2024, and debated in their subsequent email exchanges, is relevant to the issue of apparent bias. The incident is too remote from the planning committee’s decision nearly a year later. The subject of their disagreement was not, or not directly, the issue of achievable BNG which was the most important difference between Mr Sutton and Logika. There is nothing to connect the incident to any planning committee member who voted in favour of the development.

Nor do I attach any significance to the existence of cordial relations between senior councillors and officers of the LPA and THFC’s senior management. That is, as the claimant accepted, normal given the overlapping functions and interests of a major football club and the local authorities in and around the area where it plays its home matches. The fact that an officer posted on LinkedIn that the Whitewebbs Park plan went back to the Covid era is of no significance. The agreement to grant a lease would have taken time to negotiate and conclude.

These points are no more significant than that one of the committee members was a season ticket holder and another a supporter of THFC, while a third had once received free tickets to a match. The claimant rightly does not suggest those members should have stood down and not voted. The claimant does rely on the provision of hospitality on four occasions during the period between the decision to grant planning permission in February 2025 and the issue of the actual decision notice in July 2025, while negotiations for a section 106 agreement were taking place.

I need not express a view on whether it was wise for the recipients of THFC’s acts of hospitality at that time to accept it. The acts of hospitality postdated the committee’s decision but the details were still being ironed out and would continue to be for some time, indeed even after issue of the decision notice. I do not accept any suggestion that the hospitality should be seen as some sort of reward for the committee’s decision. There is no evidence beyond the hospitality itself to support any inference to that effect. I decline to draw one. The main evidential point is that no member of the planning committee was involved in accepting any relevant hospitality either before or after the meeting.

The LPA’s code of conduct and the guidance note on acceptance of gifts take the matter no further and do not, in my judgment, assist the claimant. Again, that would only be relevant if members of the committee had accepted gifts or hospitality. There is no convincing evidence that the committee members were or should be taken to have been unable to exercise unbiased and impartial judgment in determining the planning application. Indeed, four of the members voted against the proposals. I dismiss this ground of challenge.

For those reasons, I allow the claim on ground 1(a) and (b). I do not refuse relief pursuant to section 31(2A) of the SCA 1981. The planning permission will be quashed. Grounds 2, 3 and 4 do not succeed. Ground 5 is arguable; I grant permission on that ground but I dismiss it. The parties are asked to provide an agreed draft order for my approval. I will deal with any consequential matters by way of brief written submissions.