The Wimbledon Expansion and Metropolitan Open Land

I had always dreamed of winning Wimbledon and when it happened it was very stressful. It was more of a relief”. Those were the words of Pat Cash, the Australian tennis player, on winning the Wimbledon title in 1987. Performing at Wimbledon, particularly on centre court, must be a demanding thing indeed: adjusting to the grass surface; managing the weight of tennis history; being in the gaze of distinguished spectators in the Royal Box. As Cash said, it is all very stressful. And so it has become, I imagine, for the planners of Wimbledon too.

A significant application to expand the Wimbledon site was granted by Merton Council in October last year but subsequently refused by Wandsworth Council under a month later. Because the site is within the administrative areas of both authorities, both needed to consent to two separate but identical applications. The decision has now very recently been called in by the Greater London Authority under the Town & Country Planning (Mayor of London) Order 2008. The Mayor of London – or rather his deputy, as Sadiq Khan has recused himself – will effectively become the local planning authority, the umpire (if you will) in a planning match whose sets have dragged on for four years.

Background

On 30 July 2021, All England Lawn Tennis Group PLC applied for hybrid (i.e part detailed and part outline) planning consent to expand the present Wimbledon site into the adjacent park and golf course which the club acquired in 2018 (though it has owned the freehold since the early 1990s). The proposal is substantial. If granted, it will almost triple the complex’s footprint with the provision of 38 new tennis courts, a suite of maintenance buildings, and major alterations to Wimbledon Park and Lake. Central to the development is a new 8,000 seater court, named the Parkland Show Court.

Unsurprisingly, the club is keen to further its objective of maintaining the Wimbledon Championships as one of the world’s premier tournaments. According to the club’s planning statement, expanding “will safeguard the future of The Championships at SW19 and ensure that Wimbledon remains as the pre-eminent tennis tournament in the World and one of the most recognisable global sporting events.”

Wimbledon is the only Grand Slam whose qualifying events are held off-site. Roehampton, three miles away, is where they are currently held and the physical separation means that they are a much smaller affair compared to the qualifiers before other tournaments. The club wants to increase their profile and, in so doing, “… improve the experience of The Championships and address some of the constraints associated with the main [Wimbledon] Grounds. This includes the need to provide a larger show court and to increase the number of practice courts available to the main draw competitors.” If built, the development would bring overall spectator capacity to 50,000.

Drama on and off the Court

So what’s the headache? While players rally merrily in exhibition matches or fight it out in all-or-nothing qualifiers, why would the planners be feeling the pressure? The issue is this: Wimbledon Park encompasses a great deal of protected or special designations and, as such, the expansion has become hugely controversial. Chief among the many planning constraints is the fact that the park is entirely Metropolitan Open Land (“MOL”).

Unique to London, MOL is land within the 32 boroughs that fulfils a similar function to the Green Belt and is protected from inappropriate development by planning policy. MOL can be designated as such because it contributes to the physical structure of London by being distinguishable from built-up areas, or it includes open-air facilities which serve the city for the purposes of leisure, recreation, sport, arts and cultural activities, or tourism. Land may also be MOL if it contains features of historic, recreational, nature conservation or habitat interest.

Many, such as Save Wimbledon Park, the London Wildlife Trust, and the Capability Brown Society – (the park takes much of its heritage significance from having been worked on by the famous landscape architect) – have referred to MOL in order to object to the scheme.

Legislative and Policy Background

The London Plan is the overall strategic plan for London. It is a spatial development strategy prepared by the Mayor of London under section 334 of the Greater London Authority Act 1999. It forms part of the development plan for all London boroughs. Therefore, it is something to which they must all have regard when determining planning applications and decisions should be made in accordance with it, pursuant to section 38(2) of the Planning and Compulsory Purchase Act 2004.

Metropolitan Open Land

Policy G3 of the London Plan gives strong protection to land designated as MOL. In relation to planning applications, it reads:

“Metropolitan Open Land (MOL) is afforded the same status and level of protection as Green Belt:

  1. MOL should be protected from inappropriate development in accordance with national planning policy tests that apply to the Green Belt
  2. Boroughs should work with partners to enhance the quality and range of uses of MOL.”

As such, when London’s local planning authorities consider planning applications that will encroach into MOL, they have to apply the same tests that they would use if it was Green Belt land. This is reinforced by case law, in R (Lensbury Limited) v Richmond-upon-Thames London Borough Council [2017] JPL 96 it was held that the protection to be afforded to MOL is equivalent to, and no less than, the protection afforded to the Green Belt in national policy.

The National Planning Policy Framework makes clear that the Government attaches great importance to the Green Belt. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence. Furthermore the NPPF states:

“Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

“A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt …”

Green Belt policy is complicated and the courts have developed it or provided clarification where necessary. Harm to the Green Belt is not limited merely to harm resulting from inappropriateness itself: see R (River Club) v Secretary of State for Communities and Local Government [2010] JPL 584. Development does not strictly have to be located in the Green Belt to harm its openness; indeed, development outside but conspicuous from the Green Belt is capable of being harmful. Importantly, harm can include both spatial harm arising from the built form and a development’s visual effect.

Very Special Circumstances

Having established that a given proposal in MOL is inappropriate and therefore harmful development, it will only be granted if there are very special circumstances which clearly outweigh that harm (which should be given substantial weight in the planning balance). The correct approach to the very special circumstances test was considered in R (Wildie) v Wakefield Metropolitan Borough Council [2013] EWHC 2769. In practice, planners must consider the “definitional” harm arising from the development as well as any further harm to the Green Belt, and then consider the benefits that the development would deliver. Thereafter, planners have to consider whether those benefits clearly outweigh the harm so as to amount to very special circumstances.

For circumstances to be “very special” they do not have to be more than commonplace, i.e. they do not have to occur rarely. The correct test is not one of whether the harm to the Green Belt (definitional or specific) is “significant or unacceptable”, either in and of itself or following the balancing exercise. The weighing up exercise is a matter of professional judgement for expert planners that the courts will be reluctant to interfere with: see Sefton Metropolitan Borough Council v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1082.

Double Fault: Could MOL be the Expansion’s Undoing?

Objectors worry that the expansion will cause unacceptable harm to Wimbledon Park and Lake which would not be outweighed by very special circumstances. People expressed concern about the development’s permanence and the activity it would generate, such as increased traffic. In relation to openness, people have noted that the club will only allow “permissive” access meaning that use of the park will be wholly reliant on the club keeping it open for general access. Their views were vindicated by Wandsworth’s planning department who found “… that the proposed development would provide a number of benefits. However, it is not considered that the need for the permanent facilities proposed have been sufficiently justified, only that it is desirable to keep up with the AELTC’s competitors. Nor has it been demonstrated that alternative sites for the whole development have been clearly considered and discounted.” The application was found to be inappropriate development and there were no very special circumstances to justify it in MOL.

The All England tennis club accepts the new Parkland Show Court would mean the scheme would constitute inappropriate development but it argues that very special circumstances are manifold. It cites the socio-economic and cultural benefits arising from the development and the importance of securing the Wimbledon Championships as a preeminent tennis tournament and one of the most recognisable sporting events internationally. Additionally, it argues that it would improve the park by securing a range of environmental improvements which will collectively safeguard the heritage, recreation, visual and amenity value of the lake.

When it comes to openness, Wimbledon say that the park has been in private ownership for a long time and, in any case, the baseline for openness is a low one given the current golf-related development already present there. London would gain a new 9.4 hectare public park, the club says, which would deliver a range of heritage and ecological improvements. They also note that much more of the site is in Merton Council’s area, and they resolved to grant permission.

Conclusion

As it happens, Pat Cash only ever won one Grand Slam. It is easy to focus on one achievement when looking at his career. Similarly, this decision may define the future of Wimbledon. MOL plays an important role in the planning process in London but it is just one thing that will be considered in planning mix. It will be interesting to learn the outcome and see whether the Greater London Authority considers the Wimbledon tournament to be as special as the club asserts.

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