The Mayor of London granted planning permission on 18 November 2024 for the scheme, which includes the provision of 38 new lawn tennis courts, a new 8,000-seat ‘show court’, and new facilities for players and visitors, together with improvements to the neighbouring Wimbledon Park and lake.

The Claimant, an action group of local residents, argued that the development site, a golf course which is not now in use, was subject to a statutory trust for recreation such that the public had rights to use it as public open space as a result of which it would not be possible to deliver the development, citing the Supreme Court judgment in Day v Shropshire.

The Mayor in granting permission accepted that whether or not such a trust did exist was relevant to the applicable of various planning policies, including those relating to public open space. However, he did not consider that the statutory trust (as well as some restrictive covenants that affect the land) as an impediment to the implementation and delivery was of themselves material considerations in this case which should be taken into account in deciding whether or not to grant planning permission. 

The principal ground of challenge was that in taking this approach, the Mayor had failed to take into account a material consideration. 

Mr Justice Saini rejected this argument. He reiterated the established principles of law that whilst difficulties in deliverability are capable of being material considerations, in no case are they mandatory material considerations, so whether or not a local planning authority should take them into account is a matter for the local planning authority, impeachable only on rationality grounds. This is the case even if the alleged difficulties are derived from statute, are allegedly “insuperable”, or are alleged to prevent the meeting of a need case for the development including as part of a very special circumstances case. 

The judge found that the Mayor had not acted irrationally in concluding that deliverability was not a material consideration that in this particular case. 

The other grounds of challenge, which were also rejected, were focussed on paragraphs 202 and 103 of the National Planning Policy Framework respectively.

Of particular note is the judge’s rejection of the argument raised under Ground 3 that commercial sports uses are excluded from the ambit of paragraph 103(c) (“alternative sports and recreational provision”). Rather, there is nothing in the policy to necessarily exclude such uses: whether a development proposed “sport and recreational provision” is a matter of judgement for the local planning authority. 

Mark Westmoreland Smith KC led Brendan Brett for the successful Mayor of London, instructed by Aaron Richardson of TfL Legal.

A full copy of the judgment can be found here.