First set to the All England Club, but challenges remain before the match is won

So, it’s first set to the All England Lawn Tennis Club (AELTC) in their legal fight to preserve the planning permission granted by the Greater London Authority (GLA) to expand Wimbledon tennis club. However, in this game it’s the winner of the final set who wins the match and it remains to be seen how far this one will go.

In 2021, the AELTC applied for planning permission to enlarge their facilities including the construction of 38 new grass courts and a new 8,000-seater show court. The tournament has simply got too big for the current facilities. This expansion is set to be on a golf course owned by the AELTC adjacent to the current site which also happens to be a Grade II* registered park and garden, a conservation area, metropolitan open and a Grade I site of borough importance for nature conservation. Not surprisingly therefore, the application generated significant and strong local opposition, which turned into a crowd funded legal challenge once the GLA had granted planning permission in late 2024.

The main challenge to the grant of planning permission raised what seemed a novel legal planning principle, namely is an obstacle to delivering a scheme (‘deliverability’) a material consideration when deciding to grant planning permission for that development? The obstacle in question was a trust that imposed restrictive covenants over the land, which required it to be kept open and free of built development.

Although the GLA was aware of the covenants it was claimed that it had not had proper regard to them: in deciding in favour of the scheme it had concluded that it was meeting a need for the facilities, yet the claimants argued it could never meet that need due to the existence of the covenants.

It was also noted that the AELTC were in the throes of a separate legal process that sought to have any trust and the covenants removed from the land. Despite this, the GLA took what they described as a precautionary approach and assumed that the covenants did apply.

In response to the claimant’s argument the GLA and AELTC had responded that whilst they were aware of the covenants, they were not material to the decision on the planning application, and this was not an irrational conclusion to reach. Generally speaking, it has long been established that land ownership and similar issues are not relevant in the determination of planning applications, and they argued that the same consideration should therefore apply to whether the scheme was deliverable or not.

The judge agreed that although there are some instances where the deliverability of a scheme may be relevant – for example where there are two competing sites and one has obstacles to delivery – the decision on whether to take this into account is a matter for the decision maker, and the court would only interfere if that decision was irrational.

It was incorrect to say that deliverability was something that the decision maker always had to take into account, or that there are certain instances when it had to be taken into account. He pointed out that it was a long-accepted principle that a planning authority can conclude that a development is acceptable in land use planning terms even if that development is prevented by some other restriction on the use of the land.

There were two other arguments as to why the permission was unlawful but both were rejected by the judge, so the planning permission was upheld.

Whilst the judge maintained that his decision was in line with established legal principles it would not be a surprise if the claimant’s legal team were able to make out that the case involves new legal principles, such that the Court of Appeal would allow an appeal to be heard. Possibly everything is still all to play for.

John Bosworth is a partner and head of planning at Maples Teesdale