Arsenal Football Club Plc v Secretary of State for Communities And Local Government & Anor [2014] EWHC 2620 (Admin)

[2014] EWHC 2620 (Admin)Case No CO/835/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/07/2014
Before
MR JUSTICE CRANSTON
Between
Arsenal Football Club PlcClaimantSecretary of State for CommunitiesFirst Defendantand Local GovernmentDefendantIslington London Borough CouncilSecond Defendant
Daniel Kolinsky (instructed by Arsenal FC General Counsel) for ClaimantRichard Honey (instructed by Treasury Solicitor) for First DefendantRobert Walton (instructed by London Borough of Islington) for Second DefendantHearing Hearing date: 22 July 2014
JudgmentMr Justice Cranston :Introduction
[1]This is a challenge by the claimant, Arsenal Football Club Ltd (“the club”), under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to a decision of David Smith, the Secretary of State’s Planning Inspector, contained in a decision letter of 16 January 2014. After a 6 day inquiry Mr Smith refused the club’s application under section 73 of the 1990 Act to vary the conditions which Islington London Borough Council (“the council” or “Islington”) had attached to two previous planning permissions for the Emirates Stadium. The application was to increase from 3 to 6 the number of music concerts which may be held each year at the stadium and to allow the number of major events to be held on a Sunday to increase from 1 to 3.[2]The claim before me is confined to the single ground that the Inspector was in error under section 38(6) of the Planning and Compulsory Purchase Act 2004 in addressing whether the club’s application complied with the development plan for the area. Section 38(6) provides that the determination of a planning application “must be made in accordance with the [development] plan unless material considerations indicate otherwise”.

Development plan

[3]The relevant development plan for Islington at the time of the decision consisted of the Islington Core Strategy (adopted 2011); Islington’s Development Management Policies (adopted 2013); and the London Plan (adopted 2011).[4]Policy CS14 of the Islington Core Strategy supports retail and shops for economic development and the enhancement of existing cultural uses. It reads, in part:
“Retail and services A. Islington will continue to have strong cultural and community provision with a healthy retail and service economy providing a good range of goods and services for the people who live, work and study in the borough. This will both support the borough’s economic development and enable people to shop locally. The council will protect and enhance the existing arts and cultural uses and encourage new arts and cultural uses, particularly within town centres.”
[5]Islington’s Development Management Policies provide for the location of entertainment activities. DM4.2 states that entertainment and night-time activities are generally inappropriate outside town centres, but where proposed outside town centres applicants will need to demonstrate that such uses will not result in adverse impacts, including cumulative impacts, as assessed in relation to policy DM4.3, and are consistent with other policies relating to development outside town centres. The supporting text to the policy refers to entertainment and night-time uses including cinemas, theatres, restaurants, public houses and other similar uses. Such uses, it explains, “can result in adverse effects on surrounding neighbourhoods, with adverse amenity effects generated from factors such as noise and anti-social behaviour, particularly late at night”. The supporting text adds that applications for entertainment and night-time uses outside town centres will need to demonstrate that the proposed use will not result in adverse impacts, particularly on residential amenities.[6]Policy DM4.3, on the location and concentration of uses, states that proposals for cafes, restaurants, drinking establishments, off licences, hot food takeaways, lap dancing clubs, nightclubs, casinos, betting shops, amusement centres and other similar uses will be resisted where they would cause unacceptable disturbance or would detrimentally affect the amenity, character and function of an area.[7]There is support for local public houses in Development Management Policy DM4.10.[8]Regarding noise nuisance DM6.1, “healthy development”, states:
“Noise sensitive developments should be adequately separated from major sources of noise, such as road, rail and certain types of development. Noise generating uses should, where possible, be sited away from noise sensitive uses. Where noise generating uses are proposed within a residential area, applicants should demonstrate that the use will not give rise to noise nuisance.”
The supporting text to DM6.1 explains that where potentially noisy developments, such as entertainment venues, industrial uses and construction, are proposed within residential areas, the council will expect the use not to give rise to noise nuisance.[9]Within the strategic part of the London Plan, Policy 4.6 states that the Mayor will support and the boroughs and other stakeholders should support “the continued success of London’s diverse range of arts, cultural, professional sporting and entertainment enterprises and the cultural, social and economic benefits that they offer to its residents, workers and visitors.” It goes on to provide for how planning decisions should do this and how local councils should act in preparing local development frameworks.

Claimant’s application and planning inquiry

[10]Among the conditions attached to the planning permissions granted for the Emirates Stadium before it was opened were conditions AG20 and AG27. AG20 states that, for the 3 music concerts permitted, amplified sound from concerts within the stadium must be controlled in accordance with the guidance provided by the Code of Practice on Environmental Noise Control at Concerts, 1995 (“the COP”), such that music levels do not exceed 75 dbl, 1 metre from the façade of any noise sensitive premises. Condition AG27 states:
“There shall be no more than 6 non-association football single day major events (of which a maximum of 3 could be music concerts events) in any 12 month period of which total not more than one shall be on a Sunday and not more than one on a Bank Holiday.”
[11]In February 2013 the club applied to vary those conditions. The council refused the application by notice dated 23 July 2013. It stated that the proposed changes to the condition AG27 to allow an increase in the number of non-association football single day major events from 6 to 9, and the distribution of events to include a greater number of Sundays, along with the increased sound levels potentially allowed by changes to condition AG20, “would cause unacceptable harm to the amenity and functioning of the local area to the detriment of Islington’s residents”. The notice added that the proposals would be contrary to policies DM 4.2, DM4.3 and DM6.1 of Islington’s Development Management Policies.[12]The club appealed against the council’s decision to the Secretary of State, who appointed an inspector to consider the matter. Among the evidence which the club submitted in support of the appeal was that of Roger Hepher, a town planner. He dealt with planning issues in part 5 of his written proof of evidence. He stated that the development plan was the starting point for the inspector and referred to the London Plan, Policy 4.6 and Core Strategy CS14. In his opinion the proposal was consistent with these polices. In considering DM4.2, DM4.3 and DM4.6, Mr Hepher’s evidence was that these were not infringed. Overall, there was a very strong degree of compliance with the development plan insofar as it addressed the circumstances of the appeal. Referring to specific evidence on noise levels Mr Hepher concluded that, coupled with the infrequent use, it was difficult to conclude that what was proposed would have significant adverse effects on amenity under DM4.2 or create unacceptable disturbance under DM4.3.[13]Islington’s evidence before the Inspector referred to the major adverse impacts of the proposal with noise, the impact on the transport network and the cleaning and dismantling. These had to be considered within the context of policy DM4.2. There was also reference to Core Strategy CS14 and the London Plan, regarding the success of London’s diverse range of art, cultural, professional sporting and cultural enterprises.[14]At a pre-inquiry meeting on 3 October 2013, the inspector recorded that the main planning issue, on his initial view, related to the impact on the living conditions of nearby residents and the general amenity and functioning of the borough and, if any harm arose, whether that would be outweighed by other material considerations including economic and other benefits.[15]In a statement of common ground in November 2013, the claimant and the council set out as follows the list of the planning policies and guidance documents of relevance to the issues to be considered at the inquiry:
“Development Plan: London Plan (2011), Core Strategy (2011), Development Management Policies (2013), in particular those policies listed in the reason for refusal, as set out below: Development Management Policy DM4.2 (Entertainment and the night-time economy); Development Management Policy DM4.3 (Location and concentration of use); and Development Management Policy DM6.1 (Healthy development).”
The statement then proceeded with a discussion of the agreed principles under these headings: transport, noise and “other”. The latter contained eight sub-headings, including socio-economic impact, ecology, impact on Gillespie Park, sustainability and energy consumption, lighting, and environmental impact assessment.[16]The inquiry opened on 10 December 2013 and there was a site visit on 17 December 2013. The Inspector heard evidence from a number of representatives from the club and the council. It also heard evidence from Cllrs. J Gilbert and A Hull and from 15 local residents and interested parties.[17]In closing submissions before the inspector Mr David Cooper, on behalf of the club, referred to the London Plan 2011 and the Core Strategy 2011, both of which he submitted supported the proposal. The balancing exercise was crucial. The council’s refusal was uncalled for, and unsupported by any serious evidence. It was also contrary to the London Plan, contrary to the National Planning Policy Framework (“the NPPF” or “the Framework”), contrary to the level of objections received, contrary to the number of complaints, and with no sound planning basis.[18]For the council, Mr Robert Walton set out in his closing submissions what he asserted was the decision-making framework: the appeal had to be determined in accordance with the development plan, unless material considerations indicate otherwise. He referred to section 79 of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004. For the purposes of the appeal he submitted that the development plan comprised the London Plan 2011; the Islington Core Strategy 2011; and Islington’s Development Management Policies 2013. The council’s case was that there are no material planning considerations which indicated that the appeal should be determined other than in accordance with the development plan. On the other hand, the club appeared to argue that the appeal should be determined in accordance with the test set out in paragraph 14 of the NPPF, or that this test was in some way relevant to the determination of the appeal. The flaw in this analysis was that paragraph 14 of the NPPF only came into play where the development plan was absent, silent or out of date. It was none of those things. The club conceded that the development plan was not absent or out of date but tentatively suggested that the plan may be silent in some relevant regard. Mr Walton contended that the precise basis of this assertion remained unclear, but given that there was broad agreement as to the applicable policies, and that these covered all the principle issues in the case, it could not credibly be concluded that the development plan was silent.

Inspector’s decision letter

[19]The Inspector dismissed the appeal in a decision letter dated 16 January 2014. He said that the main issue was the impact of the living conditions of nearby residents and the general amenity and functioning of the Borough, with particular reference to noise and disturbance and transport and, if any harm arose, whether it would be outweighed by other material considerations including economic benefits: [4]. He referred to the COP and that it was somewhat out of date: [9]-[10]. Under the heading “noise and disturbance” the inspector described the surrounding area of the stadium and the experience with previous concerts. The noise and disturbance was different to a football match: [11]. The additional concerts would cause “significant disruption to the quality of life of many of those living in the vicinity” of the stadium; it was “unbearable” for some: [12]. The density of population around the stadium was higher than with stadiums at Twickenham and Wembley: [17]. Those objecting formed a tiny proportion of the population which belied the fact that noise and disturbance would impact detrimentally on hundreds of people. The events would be concentrated in a narrow window of time which for many residents was a valuable respite from the disruption caused during the football season: [19]. The scheme would offend Islington’s Development Management policies DM4.2, DM4.3 and DM6.1 because of the noise impacts and the impact on amenity, the concerts giving rise to unacceptable disturbance: [22-23]. “Therefore, the proposal would not accord with the development plan…[N]on-compliance with the COP is of significant weight ... [d]espite its age … [A] combination of the on-going complaints; the density of housing; the importance of a respite and the potential for other large events nearby leads to the conclusion that the proposal would have a significant adverse impact on the living conditions of nearby residents: [24].”[20]The inspector then turned to transport. The stadium had good public transport links and the club had experience of managing the movement of large numbers of people to and from the stadium, although there would be disruption: [26-27]. Development Management Policy DM4.3 meant proposals should not detrimentally affect the amenity and function of the area but the harm caused to nearby residents would be minor and would be insufficient on their own to resist the further concerts: [28].[21]Under the heading “other impacts” the inspector considered that during major events Gillespie Nature Reserve was closed: [29]. The proposals would give rise to anti-social behaviour ranging from littering to urinating and worse in public, which was greater than at football matches: [30].[22]The inspector’s decision letter then had a part with 14 paragraphs, entitled “other material considerations”. The bulk of these were under the sub-heading “economic”. There the inspector summarized the club’s evidence as to the income which would be generated by a concert both to the club and off-site: [31]. He considered criticisms of that evidence e.g., the rental fee paid to the club may not ultimately be spent in Islington; the owner and manager of the Tollington pub and restaurant stated that football matches generate more than concerts because spectators have more time for food and drink before and after: [32]-[35]. In particular, while a bottom-up analysis of off-site expenditure was to be preferred, the methodology was flawed: [33]. It was common ground that the proposal would not benefit the country as a whole since a concert would be held somewhere in the UK: [36]. If a band were told that the Emirates was not available it was more likely than not that an alternative London venue would be used: [38].[23]The Inspector stated that the scheme would give rise to economic benefits, albeit not as great as claimed by the club. The Framework placed significant weight on economic growth through the planning system. The London Plan highlighted that the cultural sector is central to the city’s economic success, Policy CS14 of the Islington Core Strategy refers to a healthy retail and service economy, and in line with Policy DM4.10 increased income for pubs was supported: [39]. Both the London Plan and the Core Strategy supported tackling unemployment, but the proposal was unlikely to address its underlying causes, so reduced weight could be given to that factor: [40].[24]The next sub-heading was “cultural”. The Inspector concluded that the proposal would be consistent with Policy 4.6 of the London Plan and CS14 of the Core Strategy in strengthening London’s cultural role: [41]-[42]. Dealing with the club itself, the inspector considered that the proposal would benefit it financially and also intangibly through branding. However, although no concerts were planned the club was not prevented from spending £42 million to acquire the services of Mesut Ozi. Little weight could be given to the fortunes of Arsenal Football Club as a material planning consideration: [43]-[44].[25]Under the final heading, “overall balancing”, the inspector concluded: “The proposal would not accord with the policies in the development plan that seek to protect amenity and to prevent noise nuisance. The extra concerts would have a significant adverse impact on the living conditions of nearby residents in terms of noise and disturbance. There would also be minor harm to them due to inconvenience in relation to transport issues. However, there would be economic benefits to Islington although these would largely favour the food and drink sector and a major strengthening of London’s economy and cultural role. The proposal would adhere to the policies that support economic growth and cultural facilities: [48].[26]The Inspector then considered the implications of the NPPF. Its foreword refers to positive growth and that the planning system is about helping that to happen. However, economic growth was not the be all and end all and the different dimensions to sustainable development should be sought jointly and simultaneously: [49]. The Noise Policy Statement for England indicated that noise should be considered alongside other issues but planning decisions should avoid giving rise to significant adverse impacts on quality of life, which would be the result here: [51].[27]The inspector concluded that the advantages of the proposal “would be insufficient to outweigh the conflict with the development plan and the harm that would occur”: [52].

Legal principles

[28]There are three strands of relevant legal principle on which this claim must be determined. The first is derived from section 38(6) of the Planning and Compulsory Purchase Act 2004, which provides that the determination of a planning application must be in accordance with the development plan unless material considerations indicate otherwise. So the development plan is the starting point and it receives priority: South Northamptonshire Council v Secretary of State for Communities and Local Government [2013] EWHC 11 (Admin), at 20, per HH Judge Mackie QC. There is a well known passage in Lord Clyde’s speech in City of Edinburgh Council v Secretary of State for Scotland[1997] 1 WLR 1447, at 1459F, interpreting the comparable section in the previous legislation. Lord Clyde said that a planning decision will be open to challenge if it fails to have regard to a relevant policy in the development plan or misinterprets it. Lord Clyde added that it was undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided he did not act without his powers: at 1459H-1460A.[29]The issue in R (on the application of Hampton Bishop PC) v Herefordshire Council [2014] EWCA Civ 878 was the grant of planning permission for the transfer of a rugby club's existing ground and whether departing from a key policy in the local development plan was justified by other material considerations. In his judgment, with which Sir Terence Etherton C and Christopher Clarke LJ agreed, Richards LJ held that the last mentioned passage in Lord Clyde’s speech (at 1459H-1460A) was evidently not intended to qualify his earlier observations about the general approach required. It is up to the decision-maker how precisely to go about the task, but he must make the determination in accordance with the development plan unless material considerations indicate otherwise, and “he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan”: [28]. Compliance with the duty under section 38(6)as a general rule required decision-makers to decide whether a proposed development was or was not in accordance with the development plan, since without reaching a decision on that issue they were not in a position to give the development plan its statutory priority: [33].[30]The second strand of relevant legal principle was also stated by Lord Clyde in the City of Edinburgh case, that where a planning application is in accordance with some policies in the development plan, but in contravention of others, the decision-maker’s task is to decide in the light of whole plan whether the application accords with it. In R (on the application of TW Logistics Ltd) v Tendring DC [2013] EWCA Civ 9; [2013] 2 P & CR 9 the local authority had adopted a Conservation Area Management Plan and the issue was whether some of the proposals contained in it were unlawful as being inconsistent with the adopted local plan. Lewison LJ (with whom Aikens and Mummery LJJ agreed) said that the court must not adopt a strained interpretation of the local plan in order to produce complete harmony between its constituent parts, and it must be wary of a suggested objective interpretation of one part of the local plan as having precedence over another. In a case in which different parts of the Local Plan pointed in different directions it was for the planning authority to decide which policy should be given greater weight in relation to a particular decision: [18].[31]In enunciating this point Lewison LJ drew on the proposition of Ouseley J in R (on the application of Cummins) v Camden London Borough Council [2001] EWHC 1116 (Admin) at [164], that it may be necessary for a council in a case where policies pull in different directions to decide which is the dominant policy, whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given. Ouseley J derived this proposition in turn from the dictum of Sullivan J in R v Rochdale MBC ex parte Milne [2000] EWHC 650 (Admin) at [47]-[50]. (See also London Borough of Islington v Secretary of State for Communities and Local Government [2012] EWHC 1716 (Admin), at [53], per Ouseley J). Recently Lord Reed restated the point authoritatively in Tesco Stores Ltd v Dundee City Council [2012] UKSC13; [2012] PTSR 983, [19]:
“[D]evelopment plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment.”
[32]The third strand of relevant legal principle concerns the standards the courts require of planning decisions. Oft quoted in this regard is the passage in Seddon v Secretary of State for the Environment (1981) 42 P&CR 26, at 28, that it is no part of the court’s duty to subject planning decision to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. In South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC141, 148 G, Lord Bridge (with whom other members of the judicial committee agreed) said thatdecision letters should be read fairly and as a whole and without excessively legalistic textual criticism. Hoffmann LJ put the same point in a slightly different way in South Somerset District Council and the Secretary of State for the Environment v David Wilson Homes (Southern) Ltd (1993) 66 P & CR 83, at 83E-F, that an inspector is not writing an examination paper and decision letters must be read in good faith. Another of the great judicial figures of recent times, Sir Thomas Bingham MR, summed up the matter in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council(1993) 66 P & CR 263, at 271-272:
“There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”
[33]I would only add that as with a judgment, the appellate body must appreciate how the parties’ case was put, since that will bear on how the decision is structured and what parts of the case are given emphasis in it. Moreover, the appellate body should not be expecting that the decision will necessarily flow in a linear manner, part by part, paragraph by paragraph, with the conclusion at the end. That would be a counsel of perfection. The reality is that the decision may have been reached by considering the material as a whole and not by a stage by stage process, each stage considered in isolation. Thus in putting pen to paper a statement at a particular part of the decision may be based not only on what comes before it but it may anticipate what follows. It is artificial to expect the written decision to proceed paragraph by paragraph if the conclusion itself derived from a far from logical process. What is required is that the decision be read in good faith and understood as a whole.[34]Closely related to how courts should read planning decisions is the issue of what they must contain. In one of the most quoted passages in modern planning cases, Lord Brown said in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953, at [36], that the reasons given for a decision must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal controversial issues, but that reasons can be briefly stated. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law but such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration and a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

The club’s case

[35]In Mr Kolinsky’s submissions for the club there was a legal error on the face of the Inspector’s decision letter: he did not reach his decision to refuse the club’s appeal on the basis of the development plan as a whole. The development plan contained policies supporting economic development at each of its levels, the London Plan Policy 4.6, Islington Core Strategy CS14 and the specific support within Islington’s Development Management Policies DM4.10 for local pubs. Thus there was clear development plan support for the application. Yet the Inspector erred in failing to address whether the proposal was in overall accordance with the development plan. He accepted the club’s contention that the policies of the development plan supported the generation of economic benefits and the enhancement of cultural facilities. However, he never acknowledged that these strands of support for the proposal in the development plan were relevant to his judgment as to whether the proposal was in overall conformity with it. Instead, he appeared to have equated non-compliance with aspects of the development plan with overall non-conformity. Rather than addressing the question whether the proposal was in overall conformity with the development plan he treated the economic benefits of the proposal as relevant to the question of whether the breach of the development plan was outweighed by other material considerations.[36]Mr Kolinsky submitted that hints of the Inspector’s flawed approach was evident at the outset, in paragraph [4], and in his consideration of the breaches with noise and transport before turning to the positives under what the Inspector labelled “other material considerations”. These suggested an approach that breach as part of the plan constituted breach of the development plan as a whole and it was necessary to ask whether that breach was outweighed by other material considerations. But where the Inspector became completely unstuck was in paragraph [24], which is the only place he addressed the section 38(6) question. After concluding in the two previous paragraphs that the proposal was contrary to Development Management Policies DM4.2, DM4.3 and DM6 because of noise impacts and the impact on amenity, the Inspector stated at paragraph [24] that “therefore” the proposal would not accord with the development plan. Yet at this stage of his analysis he had not even considered policies relating to any matter other than noise and amenity. He had therefore not canvassed the policies supporting economic benefit or the expansion of cultural faculties, which he later acknowledged lent support to the application. Nor had he considered at all the London Plan, which is clearly part of the development plan.[37]Mr Kolinsky contended that the Inspector’s mistake in paragraph [24] of prematurely equating conflict with one aspect of one part of the development plan with conflict with the development plan as a whole was not corrected in any other part of the decision letter. The Inspector’s concluding paragraphs could not save matters. Paragraph [48] was simply a summary of all the issues previously considered, not an assessment against overall conformity with the development plan as required by section 38(6). Paragraph [52] mentioned the development plan but was not an overall assessment in relation to it. Reading the Inspector’s decision letter it is clear that the Inspector never addressed the key question whether the club’s proposal was in accordance with the development plan as a whole.

Discussion

[38]In my judgment Mr Kolinsky’s submissions fall foul of the third strand of legal principle enunciated earlier, that planning decisions should not be approached in an overly legalistic way but should be read as a whole, and in good faith. If that is done it is clear to me that the inspector did properly address the question of whether the proposal was in accordance with the development plan. First, there can be no question that the inspector took into account all relevant planning policies constituting the development plan – Islington’s Development Management Policies DM4.2, DM4.3 and DM4.10 and DM6.1, Core Strategy CS14 and the London Plan. They were referred to in the parties’ submissions, in the Statement of Common Ground and plainly in the decision letter itself. In particular the Inspector summarised his conclusions on the application of each in paragraph [48].[39]Secondly, it was up to the Inspector to resolve the tension between the different policies. That he did. On the one hand he was faced with the specificity of the Development Management Policies (with their supporting text) with in his judgment negatives for the proposal. On the other hand there was the vaguer encouragement of economic and cultural activities in the Islington Core Strategy CS14 and London Plan. In his judgment there were positives for the proposal in these. (There was also the Development Management Policy DM4.10 in favour of public houses). In the result he regarded the three Islington Development Management policies as the policies to which greatest weight should be given as regards the noise and the impact of the proposal on the living conditions of nearby residents. That reflected the balance in the way matters were advanced before him, for the club denied that there was a breach of those development management policies. Clearly that was the key issue in the case. As we have seen, the Inspector found that there would be breaches of DM4.2, DM4.3 and DM6. He considered the policies on economic and cultural development, although he concluded that the club’s case on these was overblown and the benefits limited. The policies pulled in different directions and it was the Inspector’s responsibility to place such weight on them as he in his planning judgment considered appropriate. He regarded the development management policies on amenity as dominant and their breach determinative. As he observed the clear inference is that where there is non-compliance with the development management policies planning permission should not be granted. As he also observed, economic objectives are not to be pursued at all costs and there must be reasonable limits on the extent to which land can be used. In my judgment there was no error in any of this.[40]Thirdly, the Inspector reached an assessment overall on the conformity of the proposal with the development plan as a whole. That is what he stated in paragraph [24] of the decision letter, which both sides accepted should be read with paragraph [52]. There is no doubt that the conclusion in paragraph [24] of the development plan came before his consideration of the economic and cultural policies in Islington’s Core Strategy and the London Plan. However, it is not tenable to read the decision letter without regard to the case put to him or in a linear manner. The Inspector can be taken to be well acquainted with the requirement of section 38(6) of the Planning and Compulsory Purchase Act 2004; indeed, Mr Walton had reminded him of it in his written closing. I accept Mr Honey’s submission that the conclusion at paragraph [24] meant what it said and that it did not leave out of account the supportive policies. The statement in paragraph [24] cannot be detached from the context of how the case was presented. It no doubt reflected how the Inspector considered it. Taking the decision letter as a whole the Inspector came to a conclusion as to the proposal’s fit with the development plan. It was not an error of law to conclude that the significant conflicts with Development Management Policies DM4.2, DM4.3 and DM6.1 meant that the club’s proposal did not accord with the development plan irrespective of the benefits under the economic and cultural policies.

Conclusion

[41]I dismiss the club’s application under section 288 of the Town and Country Planning Act 1990.

Cited in 7 later judgments