Harrow Council had resolved at committee in September 2017 to follow the recommendation of officers and grant conditional planning permission for an application by Harrow School to demolish existing buildings (including a sports hall) and to construct a new sports building over three levels and a new science building over three levels.
However, the Mayor of London (having broadly supported the scheme at Stage 1, under a different Mayor) directed LB Harrow to refuse the proposals on the basis that the proposed sports building was "inappropriate development within Metropolitan Open Land and causes substantial harm to the openness of the Metropolitan Open Land by reason of its excessive footprint and its location" and that "very special circumstances do not exist". In addition to the reason for refusal, the Mayor considered that less than substantial harm would arise to heritage assets, (although he did not seek dismissal of the appeal on heritage grounds).
The School appealed against the refusal, and the appeal was recovered by the Secretary of State. A three-week public inquiry was held in May 2019. At the inquiry, the Mayor appeared as the objector to the proposals (as well as a community group). Although LB Harrow were a represented party at the inquiry, they did not give any evidence to support the Mayor's objections, or make any submissions in support of those objections. Following a report by the Inspector Cullum Parker, the Secretary of State by decision letter dated 31 October 2019 agreed with the recommendation of the Inspector and allowed the appeal, granting planning permission. Furthermore, he agreed with the Inspector's recommendations in respect of costs, and granted a full award of costs against the Mayor in favour of Harrow School.
It was agreed between the School, the Mayor, and LB Harrow that (i) the existing sports centre and science building were inadequate in terms of quality, quantum and functionality (ii) the existing sports centre is located within MOL (iii) the proposed science building, which is outside MOL, was not objectionable in itself (iv) the proposed sports centre is inappropriate development on MOL which is by definition harmful, and further causes harm to the openness of MOL by reason of its siting, scale, and footprint.
The Inspector was critical of the attempt by the Mayor to widen the particulars of harm beyond footprint and location as included within the reason for refusal. He concluded that the proposed sports building would not have an adverse impact in terms of visual impact. He concluded that the proposal would not cause any harm to the historic environment.
The Inspector concluded that there were other considerations in the case which clearly outweighed the harm to MOL, such that very special circumstances existed to justify the development. These considerations were:
- The proposal would not only meet the existing and predicted needs of the school, but would also provide capacity and facilities for the local community. Moreover, the proposal would also meet the needs of competitive bodies such as Badminton England, Basketball England, British Gymnastics, British Judo, England Netball, Swim England, Table Tennis England, Triathlon England, and Volleyball England.
- The facility would provide 22,000 hours of use to other local schools and clubs, community groups and individuals at market, low, or cost price, or free, providing the use of state-of-the-art sports facilities for both the private and public sector.
- The agreed s106 included a Community Use Agreement ensured the provision of 1300 hours' free use for local schools and 500 hours' use 'at cost' for local community groups.
- There was a lack of alternative sites, the school having undertaken a rigorous view of other sites including the master planning to inform the Harrow School SPD adopted in July 2015. The proposal complied with that site-specific SPD. The Greater London Authority had been consulted in respect of the SPD, but during the appeal process the Mayor sought to suggest alternative sites utilising various means including stacking which the Inspector described as "no more than concepts at extremely early stages of thought" which "literally do not stack up".
- Heritage benefits which included the opening up of views of the historic ridge in Harrow-on-the-Hill and over Greater London.
- Landscape benefits, biodiversity benefits, and pupil safety benefits.
- Some but minimal weight was given to a so-called 'MOL land swap' which through a unilateral undertaking would secure that an area of land subject to the school's control would be subject to MOL policies until such time as it was formally designated as MOL.
The Secretary of State agreed with the Inspector's conclusions on all of the principal matters relating to MOL harm and very special circumstances. However, he found that there would be less than substantial harm in heritage terms although this would nonetheless be outweighed by the public benefits. He agreed with the Inspector's recommendation.
As to costs, the Secretary of State agreed with the conclusions and recommendations of the Inspector, who had set out in his Costs Report that:
- It was unreasonable of the Mayor to perform almost a volte-face between Stage 1 and Stage 2, which was not based on substantiated grounds.
- It was unreasonable of the Mayor to introduce alternative locations at a late stage having not raised them either at the SPD stage or the pre-application stage. In any event, these alternative locations paid little attention to site constraints.
- It was unreasonable of the Mayor to have failed to clearly refer to their s66 statutory duty and evidence that this had been carried out in their decision (Direction).
- It was unreasonable of the Mayor to set out in the reason for refusal that "the proposal is unacceptable by reason of ...", give those reasons, then a few months later try to add further words because the full suite had not been used at the right time.
- The unreasonable behaviours were of a frequency and spread across the appeal such that when taken as a whole there is a strong likelihood either that an appeal would have been avoided or that the issues would have narrowed so that an Inquiry would not have been necessary.
Ed Grant represented the London Borough of Harrow.