Cross-court: Wimbledon in the dock
New balls, please.
Yes, that same sweltering week in July 2025 when Iga, Carlos and the gang were lighting up Centre Court. That same week, another group of aces - aces of the planning bar, that is [groan, Ed.] - stepped out into the glare of different kind of court [slightly over-doing it now? Ed.]. A court that was also sweltering. And also packed to the rafters. To witness barrages of rapid-fire volleys of a different kind - rhetorical ones [Enough. Please., Ed.]. But, to be fair, more wigs. Way more wigs.
But, before we get to the wigs, a little history:
The All England Club was founded in 1868 by six gents from “Field” - a country and sports magazine for well-to-do Victorians. Founded for players of that most riveting of grassy sports… croquet. After a year-long search, they found a promising four acres of meadow between the South-Western railway and Worple Road down in glorious Wimbledon, a leafy south-western London suburb.
Now look, croquet’s fine. Croquet’s absolutely fine. If you have nothing else on the cards. But even back then its popularity was waning. Bad news for the new Wimbledon club.
Meanwhile, tennis of one kind or another had already been around for centuries. It stretches back to medieval French monasteries (“tennis” comes from the French “tenez” - “hold!” / “receive!” / “take!” - which is what they used to shout at you before serving).
So it was that only a few years into a faltering croquet business, the All England Club saw an opportunity. Because in 1872, a certain Major Walter Clopton Wingfield [they don’t make names like they used to, Ed.] came up with and patented a new version of “lawn tennis” (which he called “Sphairistikè” - ancient greek for "pertaining to use of a ball"). Major Wingfield’s big idea? A new hourglass-shaped court:
And it took off. Of course it did. It blew away the placid, croquet-based competition. The All England Club jumped on board quick: they held their first lawn tennis championships in 1877 in front of a temporary 3-plank stand that sat 30 people. 22 men - just the men at that stage - paid a guinea each to enter (couple of hundred of today’s £££). 200 spectators, many of whom arrived by horse and carriage, crammed themselves in around the central court - named (you guessed it) “Centre Court” - for the final. A final which, in a sign of things to come, had to be delayed by no fewer than 4 days because of rain. The rackets looked like snowshoes. The balls had hand-sewn flannel casings. Spencer Gore - a serve and volley specialist from Wandsworth with “a long reach and a strong and flexible wrist” - ran away with it in straight sets. Winning not only a fancy silver cup but 12 guineas. A good day out. Women joined a few years later. The first female champion was Maud Watson, the then-19 year old daughter of a Warwickshire vicar, who beat her older sister Lilian in straight sets in the 1884 final. Maud was quite the inspiration: she didn’t lose a single match either that year or the next, winning Wimbledon again in 1885. And she received an MBE for work as nurse during the First World War. Annnnnyhow…
The club moved to its current site in 1922 - off Church Road in Wimbledon, SW19. Where the tournament has lived ever since. Every rainy July. And where things have, obviously, ballooned…
A century later, you know the score. Wimbledon is a colossus. One of the world’s great sporting events. Heck, one of the great events full stop. A quintessential English icon. Up there with Pimms, strawberries, cream, Henman Hill and - most of all - Cliff Richard.
And the courts have grown a bit from that 3-plank wooden stand in 1877. Today, Centre Court seats almost 15,000 punters. Court 1 seats over 12,000. Both now with mega-fancy retractable roofs that have made rain delays a things of the past. Along with 16 other courts. But still, even with all that space, things get juuust a little busy every July when the mens’ and womens’ singles and doubles, and the junior events all come to town. There are hundreds and hundreds of matches during the Championships. Well over 500,000 visitors come to watch it all every year. It’s broadcast to over 200 territories around the world.
But, would you believe, not all is well. All England Lawn Tennis Club (AELTC) as it’s now called have been saying for years that they’re running out of space. Too many visitors. Too many matches. Not enough room. Not enough courts. The need for a 3rd “show court” to match the other “grand slams” in New York, Melbourne and Paris. And not enough capacity to host the “Qualifying Event” for Wimbledon - which happens down the road at Roehampton.
Meanwhile, it just so happens that the AELTC owns a piece of land next door known as the Wimbledon Park Park Golf Course, which looks like this (shown here in full “car-park” mode, which is how it’s now used during the tennis tournament):
Now. This is golf course with a history. It’s a Grade II* Registered Park and Garden as a remaining fragment of a once-glorious Lancelot “Capability” Brown-designed parkland landscape. It’s in the Wimbledon North Conservation Area. It’s washed over by London Metropolitan Open Land (which - under the London Plan - is “afforded the same status and level of protection as Green Belt”). It’s a Grade I Site of Borough Importance for Nature Conservation due to the significance of the veteran trees in providing woodland pasture habitat which supports a number of protected and priority species. You get the idea. As a certain Sasha White KC - acting for “Save Wimbledon Park” - put it: “You could not have a more protected piece of land in London.”
Nonetheless, the AELTC wants to grow. Big time. And they want to use that golf course to do the growing. In 2021, they put in applications to Merton and Wandsworth for a mega new expansion, including 38 new grass courts plus a new 8,000-seater show court and a 9.4 hectare public park:
What do you think? Well, Carlos Alcaraz likes it. Djokovic is on board. Comedian Andy Hamilton - who lives nearby - he’s dead against it. So. It’s a wash, I suppose.
Also against it, however, is a group of local folks. Who have, so far, raised over £140,000 to try to stop this happening. More on how their efforts have turned out so far in a moment.
Again, the land covers both the Boroughs of Merton and Wandsworth. And when the planning applications came in, the Boroughs disagreed. Merton wanted it. Wandsworth was against. Deuce. So the scheme was called in by the GLA. Sadiq Khan recused himself because he’d publicly expressed support for the scheme, so his planning powers were delegated to the deputy mayor, Jules Pipe. Who agreed with GLA officers that the scheme was supported by a raft of “very special circumstances” which outweighed any harms to the various designations above. Planning permission was issued in November 2024.
Game, set and… ah, hang on…
A few weeks later, that local group - “Save Wimbledon Park” - brought a legal challenge against the GLA’s decision to grant permission. Wigs on, gowns at the ready, and off we go to the only courts that really count: the Royal Courts of Justice. Cue the placards…
The issue
So. What was this legal challenge about?
It was about something that might seem simple. But it isn’t quite. Here’s the issue:
Are obstacles to delivering a scheme material to whether the scheme should get planning permission?
(More on what “material” means here).
How did this issue actually arise for the Wimbledon expansion?
The arguments
In a nutshell, “Save Wimbledon Park” told the judge about challenges to delivering the expansion. For instance, they said that the golf course is subject to restrictive covenants which stop any buildings being erected, and require that the land not be used “otherwise than for leisure or recreational purposes or as an open space”. And further, some objectors to the scheme claimed that the land is held subject to a statutory public recreation trust under s.164 of the Public Health Act 1875 (more on which see here).
So what?
Those things - said “Save Wimbledon Park” - mean that the golf course can’t accommodate the new tennis courts. No way, no how. The Wimbledon expansion would - so they said - be incompatible with the trust and the covenants. And - here’s the rub - that incompatibility had to be given negative weight in the balance by the GLA when deciding whether to grant planning permission. Why? Because the obstacles mean that the much vaunted “needs” AELTC were banging on about in their planning statement could never actually be met.
What had the GLA done? They’d adopted what their officers called a “precautionary” approach, i.e. they’d assumed (given competing legal opinions one way and the other) that a statutory trust did indeed exist. And they did their planning balance on that basis. And they decided to grant planning permission anyway because of a pressing need to expand Wimbledon’s facilities “to ensure that the Championships maintain their position as a key cultural and sporting fixture in the British summer and world sporting calendar”. So even if there were “difficulties regarding implementation”, those difficulties weren’t - officers thought - relevant to the decision of whether to grant planning permission or not. And even if relevant, shouldn’t get any weight. Why not? Because, in a nutshell, the officers said:
Ordinarily, potential difficulties of implementation are not relevant to the planning merits of the decision (on which see the legal run-down below).
In some circumstances deliverability can be a material planning consideration if e.g. the scheme’s benefits are time-sensitive, or there’s a single need which could be met by competing alternative sites. Neither factor was relevant here. Further, if the covenants ended up meaning the scheme doesn’t come forward, then its benefits don’t get delivered (obviously), but nor would any harm be caused.
The issue about whether the land is subject to a statutory trust for its use for public recreation not clear cut. Ultimately, the matter can only be resolved by a court. But again, even if there is a trust, there was nothing on the facts of the case which warranted treating deliverability as a material consideration.
So. Were the officers right? What did the judge decide? And what does this judgment tell us about the law on whether the deliverability of a scheme is a material planning consideration? Or not. As the case may be…
The judgment
The judgment was released this week. Mr Justice Saini dismissed the claim. On the big issue above, the Judge said that:
There is no rule of law that deliverability will always be a relevant consideration, even if the obstacles to implementation are “apparently insuperable”.
Whether or not to take account of or give weight to deliverability is a matter of planning judgment for the decision-maker, whose approach can only be challenged in the High Court if it’s irrational.
There is no authority for the proposition that deliverability will always be material where need is identified as a benefit which weighs against harm.
Further, the existence of an obstacle (even an insurmountable one) does not mean that, in cases where the proposal meets a need, deliverability is always material – without the need for more. If a development is prevented from being implemented it will not deliver any benefits (whether meeting a need, or otherwise). But there will also be no harm. There will be no development at all.
The decision-maker is required to assess or test the land use planning acceptability of a proposal which has been the subject of a duly made application, and does so on the basis that they are testing both the benefits and harms of the proposal as they are proposed to be delivered. Adopting the assumption that the development can be delivered, it would then be illogical to modify the weight to be given to the benefit of meeting a need simply on the basis that it is alleged that the development cannot take place.
As such, a local planning authority may lawfully conclude that a development is acceptable in land use planning terms and grant planning permission even if the development is incompatible with a different (non-planning) restriction on the use of land.
In the end, the GLA’s approach was rational, i.e. they were entitled to find that deliverability of the development did not in the particular circumstances affect the merits of granting planning permission, then the means for overcoming potential obstacles in the way of development did not fall for consideration.
So, there we go. Advantage AELTC. Whether a scheme is actually deliverable might - but usually won’t - be important when it comes to whether you get planning permission or not. And here? It wasn’t. Game, set and… well, there’s always the Court of Appeal 😊!
Stay cool out there, #planoraks. Keep a cool towel handy - that’s what they do on Centre Court anyway and it seems to work. And, whatever else you do, do your level best to #keeponplanning.
