Islington London Borough Council v Secretary of State for Communities and Local Government and another [2013] EWHC 2320 (Admin) ADMINISTRATIVE COURT Judge Mackie QC (sitting as a High Court judge) 30 July 2013 APPROVED JUDGMENT I DIRECT THAT PURSUANT TO CPR PD 39A PARA 6.1 NO OFFICIAL SHORTHAND NOTE SHALL BE TAKEN OF THIS JUDGMENT AND THAT COPIES OF THIS VERSION AS HANDED DOWN MAY BE TREATED AS AUTHENTIC. JUDGE MACKIE QC: 1. This is an application by the Claimant (“the Council”) under Section 288 of the Town & Country Planning Act 1990 (“TCPA”) to quash the decision of the First Defendant’s Inspector given by letter dated 5 October 2012 (“DL”). The First Defendant does not seek to defend the application and this task has fallen to the Second Defendant (“Ashburton”) which is a trading entity of Arsenal Football Club. I heard the case yesterday but decided to put my decision in writing. 2. The claim is brought against the decision of the First Defendant to allow an appeal against the Claimant’s refusal of planning permission for development of a twenty five storey building at 45 Hornsey Road, Islington. An Inspector (John Braithwaite) appointed on behalf of the Defendant allowed an appeal under Section 78 TCPA against the Claimant’s decision to refuse planning permission. The Claimant refused two applications for planning permission at Hornsey Road, Islington. The Inspector allowed one appeal and dismissed the other. 3. The Claimant’s ground of challenge is that the Inspector misinterpreted a crucial policy of the development plan when allowing an appeal. The Council says that he proceeded as though his determination was in accordance with the development plan when it was not. He should therefore have considered whether or not material considerations indicated that he should make a determination not in accordance with the plan. Ashburton responds that the determination was in accordance with the development plan and, even if it was not, the outcome would have been the same. 4. Under Section 78 TCPA refusal of an application for planning permission by a local planning authority gives rise to a right of appeal to the Secretary of State. Under Section 288 a person aggrieved by the outcome of a Section 78 appeal may apply to the Court on the grounds that the action is not within the powers of the TCPA, or that any relevant requirements have not been complied with. 5. The Court has an appeal bundle containing the underlying documents and witness statements from Ms Parkinson from the Council and from Mr Murch on behalf of Ashburton. Relevant legislation 6. The statutory duty with regard to the development plan is found in Sections 70(2) TCPA and 38(6) of the Planning and Compulsory Purchase Act 2004. Section 70(2) provides:”(2) In dealing with such an application the authority shall have regard to–the provisions of the development plan, so far as material to the application, any local finance considerations, so far as material to the application, and any other material considerations.” Under s.38(6), “[i]f regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.“ 7. In this case, the Inspector found that the development plan included the London Borough of Islington Core Strategy, the London Plan and saved policies of the London Borough of Islington Unitary Development Plan. 8. Before turning to the law I first set out the relevant facts which can largely be taken from the Decision Letter. The Decision Letter 9. The proposal was for the demolition and clearance of existing buildings on the site, and the erection of a 25-storey tower. The tower would reach a height of about 78 metres [DL 7]. The site is in an area known as Lower Holloway, which includes the Emirates Stadium and the Holloway Road. 10. The Inspector permitted appeal 6930 known as “A” but rejected, essentially on the basis that the design was unacceptable, appeal 1435 known as “B”, which was for a 16-storey building,. This, according to Mr Elvin QC for Ashburton emphasises the judgment based issue at the heart of the appeal referred to at DL 11 and 13. He considered the site and surroundings at DL3-9. At DL3 the site is described as follows; 11. He noted the relevant planning policy at 10-12 and recorded at DL11 that the parties were in agreement that the application of policy rested on the same conclusion as the main issue – 12. These applications were alternative approaches to a final stage in Arsenal FC’s regeneration of the area around the Emirates Stadium DL 14: The Inspector addressed the main issue at DL 14-22. He considered the nature of the buildings in the surrounding area, paying particular attention to the number of storeys. He found [para.16]: 13. The Inspector interpreted policy CS9 to allow him to take into account the nature of the surrounding area and decide for himself whether a building of over 30 metres was acceptable: 14. The Inspector put weight on his view of the track record of the architects instructed at the time of the Hearing to design the development. He formed a positive view of the design of the development, finding [DL22]: “The 25 storey tower would be architecture of high quality, would be a successful addition to the built environment of the Borough, and would not harm the character and appearance of the area surrounding the appeal site.” 15. The Inspector found that the tower might cast a shadow over a residential area in the east, but only for a short time during winter months [DL23]. He found that the scheme was mixed use development [DL24] and had high sustainability credentials [DL25]. Finally, the Inspector found that the tower would not undermine the interest of the locally listed former school building, or its contribution to the street scene on Hornsey Road [DL26]. 16. He considered conditions and the section 106 Agreement at DL 27-28.In conclusion at 29 he found – 17. The Inspector thus allowed the appeal, finding that the development would not adversely affect the character and appearance of the area and did not conflict with the Development Plan. Planning policies 18. The policy central to the determination of the appeal was policy CS9 of the Core Strategy. CS9E is the key passage: 19. The supporting text in the Core Strategy explaining policy CS9 states at 3.1.5: 20. The evidence base referred to was published as “Tall Buildings evidence base to inform Core Strategy 2010.” There is a general description of building heights in Islington: 21. Considering the area containing the appeal site, it states: 22. The conclusion states at p 46 23. Mr Elvin emphasises the importance of the relevant London Plan policy and its emphasis on a contextual approach to design. I bear in mind all the passages set out in his skeleton and Policy 7.4 and 7.6 but quote only the following; Guidance from case law 24. There is no dispute about the legal principles the issue is their application. I will therefore refer only to the points upon which Counsel placed particular emphasis. 25. In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, a case relating to Scotland but applicable in England and Wales, the Supreme Court held that construction of a planning policy was a matter of law for a court. If a decision-maker errs regarding the interpretation of a policy of the development plan, then it is for the court to substitute the correct interpretation. At para. 18, Lord Reed(with whom Lord Hope DPSC and Lords Brown, and Dyson SCJJ agreed), held: 26. I was taken to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759 at 780 and Sullivan J. (as he then was) in R. (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74 for the point that the primary judgments of the planning decision-maker are ones which will generally not be disturbed by the Courts unless they are wrong in law or meet the high hurdle of irrationality. 27. I was also taken to cases that emphasise that the plan is applied not piece by piece but as a whole, in particular the decision of Langstaff J. in Blackburn with Darwen BC v Secretary of State [2011] EWHC 1923 (Admin) at [17]-[21]. This case and the others referred to emphasise that the ‘accordance’ of the determination with the development plan has to be ‘with the plan’, not in accordance with each relevant policy of the plan. Breach of any one policy in a development plan by a proposed development could not be said to be not in “in accordance with the plan”, given the numerous conflicting interests that development plans seek to reconcile. For the purposes of the section it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy in it. 28. I bear in mind that the duty to give reasons in a decision is not to be approached in an over-technical way: see Lord Brown in South Buckinghamshire County Council v. Porter (No. 2) [2004] 1 WLR 1953 at paras. 35-36. Submissions of the Claimant 29. Ms Lieven QC for the Council submits as follows. Policy CS9 states that Islington has a predominantly medium to low level character and tall buildings are “generally inappropriate”. Tall buildings will not be supported, with the possible exception of in Bunhill and Clerkenwell, depending on the detailed assessment in the Bunhill and Clerkenwell Area Action Plan. Any tall building outside this very specific area (in the south of the Borough) is not in accordance with policy CS9. 30. The Inspector read the “generally” as allowing for the possibility that there might be part of the Borough where tall buildings could be appropriate. However, it is clear if CS9E is read as a whole that this is not what the policy meant. The exception to the “generally” lay in the last sentence of the policy, i.e. in the areas of Bunhill and Clerkenwell, and there was no individualised assessment to be carried out across the Borough as a whole. When he referred to Policy CS9, the Inspector did not recite the crucial last sentence, which provides that “Parts of the Bunhill and Clerkenwell key area may contain some sites that could be suitable for tall buildings”. 31. The correct construction is made clear by the supporting text in the Core Strategy, as well as the evidence base document. The conclusion reached in both of these documents is that there are no locations where new tall buildings should be supported, except possibly in the south of the Borough, which is not relevant for the purposes of this claim. 32. CS9 was based on a detailed evidence base which reaches the conclusion, after careful consideration of the data, that there should not be any new tall buildings in the area. 33. The Inspector was wrong to conclude that the development was consistent with policy CS9. This error was critical to his decision and renders the decision invalid. The policy dealing with tall buildings was not only the most relevant to the appeal site but it was also very recent and based on a detailed assessment across the Borough. Further, the policy had been subject to extensive consultation. Moreover, it is the only planning policy referred to in any detail by the Inspector. 34. Had the Inspector correctly construed CS9 then his analysis would necessarily have been wholly different, and it is highly likely that the appeal would have been rejected. This is particularly so due to the height of the development,78m when CS9 defines tall buildings as those over 30m. 35. If the Inspector had properly directed himself with regard to the policy, he would have had to weigh up the clear non-conformity with the Core Strategy against any other material considerations. This is a very different exercise from the one he actually carried out in the decision letter. Defendant’s submissions 36. Mr Elvin submits that the Council adopts a narrow approach to the interpretation on one part of CS9, outside the context of the development plan as a whole, and relies heavily on material in the evidence base to which the statutory duties do not primarily apply. The Council’s approach ignores the proper context of the policy and argues for an unduly strict construction of CS9. 37. As Lord Reed made clear at [19] of Tesco v. Dundee a planning policy is meant to be applied by planning decision-makers (and considered by developers and their advisors as well as the general public) and must be read as a whole and in the context of the relevant elements of the development plan. 38. Mr Elvin then gives three reasons why the application is misconceived. 39. First he submits that the construction of the CS9 adopted by the Council is wrong when read in context. The wording that tall buildings (above 30m high) are “generally inappropriate to Islington’s predominantly medium to low level character” does not preclude all such buildings in all cases. Had it been intended that no such buildings were to be regarded as acceptable in the borough in policy terms, it would have been simple to state that and to do so clearly. The fact that part of the borough may be considered suitable for tall buildings simply means that there is an area where the “generally inappropriate” characterisation does not apply. This policy does not mean that tall buildings will not be appropriate outside the areas noted in the final sentence but that they are considered “generally inappropriate” i.e. they will have to be justified specifically. “Generally” is an expression redolent of exceptions not of a bright line. 40. Secondly the matter needs to be looked at as a whole and in the round. The agreed issue encompassed a number of relevant policies and general impacts and design issues in planning terms. It is therefore highly relevant when considering its broad meaning and effect as planning policy in the DP context that what the Inspector was asked to consider was agreed by the Council and the parties were putting forward a case based on a number of policies from both the LP and CS in which context CS9 had to be considered. The point made in the Claim was not one made by the Council during the appeal and officers accepted that the main issue in the appeal (recorded at DL 13) would be determinative of policy compliance and the appeal generally. The parties, having considered the policies set out their respective statements, doubtless concluded that applying the development plan as a whole this issue resolved the application of those policies as a whole 41. The statutory duties apply to the DP not to the evidence base and what is properly relevant are the terms of the final adopted policy together with the Inspector’s own assessment of the merits of the application in context. To the extent that the Court considers it should embark upon a wider investigation urged by the Council, it is even more relevant to consider the development plan context including the lack of prescription in the London Plan and the contextual judgments required by 7.4. 7.6 and 7.7 as well as the context of CS9 as a whole. 42. Thirdly even if an error has been made the Court should exercise its discretion not to quash the DL since there is not a “real possibility that the consideration of the matter would have made a difference to the decision”. See Glidewell L.J. in Bolton v. Greater Manchester Waste Authority (1990) 61 P & CR 343 at 352-3.The terms in which the main issue was formulated, agreed and considered, mean that the Inspector would not have reached a different conclusion had he concluded there was a breach of CS9(E) and considered other material considerations. There were no other material considerations in Appeal A which militated against development and the Inspector had already considered the design and context of the proposals. Decision of the Court 43. A policy such as CS9 is not to be construed like a contract but to arrive at its meaning I must obviously consider the words used in context and, where there is doubt, look at the surrounding facts and material. Reading CS9 the meaning of CS9E is, as I see it, that tall buildings are inappropriate and will not be supported except in the Bunhill and Clerkenwell area. Of course these are matters of impression but the meaning of “generally inappropriate” is coloured by the fact that the words “will not be supported” appear in the same sentence. That meaning is also pointed to by the fact that the sentence that immediately follows explains that there are two areas, not Upper Holloway, that “may” contain some sites that “could” be suitable for tall buildings. Broadening the focus from CS9E to the remainder of CS9 and to the wider context, as I see it, make no difference. I accept that Mr Elvin’s construction has attractions given an expectation that a policy is more likely to be flexible than explicit. But the argument falls away when one considers the supporting text, most obviously 3.1.5 on the previous page. While the statutory duty may not apply to the evidence base this material remains available to help one arrive at the meaning of the policy. The text and other material relied upon by Ms Lieven seem to me to put the matter beyond any doubt. The proposed development does therefore conflict with CS9. 44. The policy cannot of course been seen in isolation for the reasons given above. Breach of a policy does not mean breach of a development plan. There may be many policies in play some of which may conflict. Further many policies are equivocal and can reasonably be read in different ways. However CS9 is explicit and, on this particular issue, stands alone on the question of tall buildings as the DL makes clear. The Inspector identifies and applies CS9 at DL17 and 22 referring only in general terms to the other policies comprising the plan. In approaching the meaning of the DL I bear in mind the guidance referred to above. There is however no room for misunderstanding what the Inspector says. The clarity and quality of the Decision were acknowledged by both sides. No aspects of the other relevant policies have been identified which, given a breach of CS9, make the proposed development accord with the development plan. 45. There is no doubt that the Council omitted to take the points on this application when the appeal was before the Inspector. The position is as submitted by Mr Elvin, as Ms Lieven conceded at the hearing. The reasons for that approach may or may not be those put forward by Mr Elvin. On the appeal Ashburton was represented by four senior professionals, the Council by only one, a Principal Planning Officer. 46. The Council is however entitled to take the point of law raised on this application. Its previous approach, and the other matters put forward, do not seem to me to justify taking the broad view of the matter which forms the second of Mr Elvin’s submissions. The Core Strategy is recent and was the result of widespread consultation in the community and careful evaluation. The public are entitled to be able to rely on it as the policy applicable to the issue of tall buildings. A proposed development may be permitted despite being in conflict with the development plan but only after consideration has been given to whether material considerations so indicate. 47. I agree with Ms Lieven that the exercise of weighing up non conformity with the Core Strategy against other material considerations is a distinctly different exercise from that carried out in the DL. I am not prepared to assume that if that exercise is carried out the same outcome is inevitable. It follows that the application succeeds and the Decision will be quashed. 48. As I have pointed out the high quality of the Inspector’s decision was acknowledged by both sides. As a result of the approach taken by the parties at the appeal the issue raised on this application was not referred to at all. This outcome is thus no criticism of the Inspector. This is not a case where he can be said not to have had his eye on the ball. The ball was simply not in play. 49. I shall be grateful if Counsel will send me corrections of the usual kind and a draft order, both preferably agreed, not less that 48 hours before hand down of this judgment together with a note of any matters they wish to raise at the hearing. If these matters can be agreed the parties need not attend the hand down.
Islington London Borough Council v Secretary of State for Communities and Local Government and another
Islington London Borough Council v Secretary of State for Communities and Local Government and another
[2013] EWHC 2320 (Admin)
ADMINISTRATIVE COURT
Judge Mackie QC (sitting as a High Court judge)
30 July 2013
APPROVED JUDGMENT
I DIRECT THAT PURSUANT TO CPR PD 39A PARA 6.1 NO OFFICIAL SHORTHAND NOTE SHALL BE TAKEN OF THIS JUDGMENT AND THAT COPIES OF THIS VERSION AS HANDED DOWN MAY BE TREATED AS AUTHENTIC.
JUDGE MACKIE QC:
1. This is an application by the Claimant (“the Council”) under Section 288 of the Town & Country Planning Act 1990 (“TCPA”) to quash the decision of the First Defendant’s Inspector given by letter dated 5 October 2012 (“DL”). The First Defendant does not seek to defend the application and this task has fallen to the Second Defendant (“Ashburton”) which is a trading entity of Arsenal Football Club. I heard the case yesterday but decided to put my decision in writing.
2. The claim is brought against the decision of the First Defendant to allow an appeal against the Claimant’s refusal of planning permission for development of a twenty five storey building at 45 Hornsey Road, Islington. An Inspector (John Braithwaite) appointed on behalf of the Defendant allowed an appeal under Section 78 TCPA against the Claimant’s decision to refuse planning permission. The Claimant refused two applications for planning permission at Hornsey Road, Islington. The Inspector allowed one appeal and dismissed the other.
3. The Claimant’s ground of challenge is that the Inspector misinterpreted a crucial policy of the development plan when allowing an appeal. The Council says that he proceeded as though his determination was in accordance with the development plan when it was not. He should therefore have considered whether or not material considerations indicated that he should make a determination not in accordance with the plan. Ashburton responds that the determination was in accordance with the development plan and, even if it was not, the outcome would have been the same.
4. Under Section 78 TCPA refusal of an application for planning permission by a local planning authority gives rise to a right of appeal to the Secretary of State. Under Section 288 a person aggrieved by the outcome of a Section 78 appeal may apply to the Court on the grounds that the action is not within the powers of the TCPA, or that any relevant requirements have not been complied with.
5. The Court has an appeal bundle containing the underlying documents and witness statements from Ms Parkinson from the Council and from Mr Murch on behalf of Ashburton.
Relevant legislation
6. The statutory duty with regard to the development plan is found in Sections 70(2) TCPA and 38(6) of the Planning and Compulsory Purchase Act 2004. Section 70(2) provides:”(2) In dealing with such an application the authority shall have regard to–the provisions of the development plan, so far as material to the application, any local finance considerations, so far as material to the application, and any other material considerations.” Under s.38(6), “[i]f regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
7. In this case, the Inspector found that the development plan included the London Borough of Islington Core Strategy, the London Plan and saved policies of the London Borough of Islington Unitary Development Plan.
8. Before turning to the law I first set out the relevant facts which can largely be taken from the Decision Letter.
The Decision Letter
9. The proposal was for the demolition and clearance of existing buildings on the site, and the erection of a 25-storey tower. The tower would reach a height of about 78 metres [DL 7]. The site is in an area known as Lower Holloway, which includes the Emirates Stadium and the Holloway Road.
10. The Inspector permitted appeal 6930 known as “A” but rejected, essentially on the basis that the design was unacceptable, appeal 1435 known as “B”, which was for a 16-storey building,. This, according to Mr Elvin QC for Ashburton emphasises the judgment based issue at the heart of the appeal referred to at DL 11 and 13. He considered the site and surroundings at DL3-9. At DL3 the site is described as follows;
“It has a long straight north-west boundary to the elevated east coast main railway line, a short south-west frontage to Holloway Road, and a north-east frontage to Hornsey Road. The site is bounded to the south-east by two large buildings of London Metropolitan University (LMU) with frontages on to Hornsey Road. The site encompasses land within twenty-one railway arches that have historically been used for vehicle repair activities. Between the arches and the two LMU buildings is a rough surfaced access way with highway access to Holloway Road at one end and to Hornsey Road at the other end. At the south-west end of the site is a vacant three storey building and at its north-east end the site widens to include a triangular area bounded by the north-east elevation of an LMU building, by Hornsey Road to the east and by the access way to the north-west.”
11. He noted the relevant planning policy at 10-12 and recorded at DL11 that the parties were in agreement that the application of policy rested on the same conclusion as the main issue –
“11. The Council accepted at the Hearing that whether either scheme is in conflict, or not,with other DP policies that they have referred to, in the reason for refusal of the Appeal A application, in the putative reason for refusal of the Appeal B application and in their appeal statement, rests on the conclusions reached on the main issue. In other words, if either scheme harms the character and appearance of the surrounding area then it would be in conflict with these policies and if it would not cause harm then there would be no such conflict….
“13. The main issue is the effect of the proposed 24/25 storey tower on the character and appearance of the area surrounding the appeal site.” (This is restated in similar terms at 30)
12. These applications were alternative approaches to a final stage in Arsenal FC’s regeneration of the area around the Emirates Stadium DL 14:
“14. The Appellants, effectively Arsenal Football Club, were asked by the Council to extend their regeneration of the area alongside the railway line and north-east of Hornsey Road, initiated by the construction of the new stadium, by taking on the redevelopment of the area alongside the railway to the south-west of Holloway Road. This area, sub-divided by Hornsey Street, has now been comprehensively redeveloped with a number of schemes by the architectural practice, CZWG Architects, who have designed the 24/25 storey tower that is the subject of this appeal. The last element of the Hornsey Street redevelopment scheme is a 12 storey hotel at 295 Holloway Road that has recently been granted planning permission. Other developments alongside Hornsey Street are similar in height to the proposed hotel whilst others are 6 and 8 storeys high.”
The Inspector addressed the main issue at DL 14-22. He considered the nature of the buildings in the surrounding area, paying particular attention to the number of storeys. He found [para.16]:
“The character of the area within which the appeal site is situated is quite unlike that of the area of the north-west of the railway line, either side of Holloway Road, which is predominantly occupied by 2/3 storey terraced housing. … The scale and height of development in the area contrasts with that on the other side of the railway line.”
13. The Inspector interpreted policy CS9 to allow him to take into account the nature of the surrounding area and decide for himself whether a building of over 30 metres was acceptable:
“CS policy CS9 states that buildings over 30 metres high are “…generally inappropriate to Islington’s predominantly medium to low level character…”. The area to the northwest of the railway line is of medium to low level character and a building more than 30 metres high in that area would be inappropriate. But the inclusion of the word ‘generally’ in the policy provides for the possibility that there may be parts of the Borough, not of medium to low level character, where a building more than 30 metres high would not be inappropriate. The area to the south-east of the railway line is one such area. In this area large scale, tall buildings predominate and it has a high level character. A building more than 30 metres high in this area would not be out of scale with its surroundings, would not be contrary to the character of the area, would not be inappropriate, and would not be in conflict with the thrust of policy CS9, which seeks to protect areas of medium to low level character from inappropriately high development”. [DL17]
14. The Inspector put weight on his view of the track record of the architects instructed at the time of the Hearing to design the development. He formed a positive view of the design of the development, finding [DL22]: “The 25 storey tower would be architecture of high quality, would be a successful addition to the built environment of the Borough, and would not harm the character and appearance of the area surrounding the appeal site.”
15. The Inspector found that the tower might cast a shadow over a residential area in the east, but only for a short time during winter months [DL23]. He found that the scheme was mixed use development [DL24] and had high sustainability credentials [DL25]. Finally, the Inspector found that the tower would not undermine the interest of the locally listed former school building, or its contribution to the street scene on Hornsey Road [DL26].
16. He considered conditions and the section 106 Agreement at DL 27-28.In conclusion at 29 he found –
“29. The proposed development would not adversely affect the character and appearance of the area and does not conflict with the Development Plan. Planning permission for the development, subject to conditions, has thus been granted…”
17. The Inspector thus allowed the appeal, finding that the development would not adversely affect the character and appearance of the area and did not conflict with the Development Plan.
Planning policies
18. The policy central to the determination of the appeal was policy CS9 of the Core Strategy. CS9E is the key passage:
“Protecting and enhancing Islington’s built and historic environment
High quality architecture and urban design are key to enhancing and protecting Islington’s built environment, making it safer and more inclusive.
A. The borough’s unique character will be protected by preserving the historic urban fabric and promoting a perimeter block approach, and other traditional street patterns in new developments, such as mews. The aim is for new buildings to be sympathetic in scale and appearance and to be complementary to the local identity.
B. The historic significance of Islington’s unique heritage assets and historic environment will be conserved and enhanced whether designated or not. These assets in Islington include individual buildings and monuments, parks and gardens, conservation areas, views, public spaces and archaeology. Active management of conservation areas will continue, through a programme of proactive initiatives for the conservation-led regeneration of historic areas, and potential designation of new conservation areas. Archaeological Priority Areas will continue to be defined on the proposals map to assist in the management of these historic assets.
C. Where areas of Islington suffer from poor layout, opportunities will be taken to redesign them by reintroducing traditional street patterns and integrating new buildings into surviving fragments of historic fabric. Reconfiguration based on streets and a perimeter block approach will be a key requirement for new developments, in particular housing estate renewal.
D. All development will need to be based on coherent street frontages and new buildings need to fit into the existing context of facades. Housing developments should not isolate their residents from the surrounding area in ‘gated’ communities.
E. New buildings and developments need to be based on a human scale and efficiently use the site area, which could mean some high density developments. High densities can be achieved through high quality design without the need for tall buildings. Tall buildings (above 30m high) are generally inappropriate to Islington’s predominantly medium to low level character, therefore proposals for new tall buildings will not be supported. Parts of the Bunhill and Clerkenwell key area may contain some sites that could be suitable for tall buildings, this will be explored in more detail as part of the Bunhill and Clerkenwell Area Action Plan.
F. New homes need to provide dual-aspect units with clear distinction between a public side and a quieter private side with bedrooms.
G. High quality contemporary design can respond to this challenge as well as traditional architecture. Innovative design is welcomed, but pastiche will not be acceptable. The council will establish new advisory mechanisms to ensure the highest standards of architecture and environmental design.
H. The Development Management Policies and other documents will provide further policies in relation to urban design and heritage. Detailed guidance on urban design in Islington is provided in the Islington Urban Design Guide (IUDG) Supplementary Planning Document.”
19. The supporting text in the Core Strategy explaining policy CS9 states at 3.1.5:
“An evidence based assessment hgs been conducted to determine if there are any suitable locations for tall buildings in Islington. This assessment has concluded that there are no locations suitable for additional tall buildings outside the south of the borough and this area of Islington is being covered in detail by the Bunhill and Clerkenwell Area Action Plan (AAP). It is considered that the AAP and its evidence base is the appropriate policy document to determine if tall buildings are acceptable in this area and if so where. A specific assessment for tall building locations has been undertaken as part of an urban design study for the Bunhill and Clerkenwell Area Action Plan,”
20. The evidence base referred to was published as “Tall Buildings evidence base to inform Core Strategy 2010.” There is a general description of building heights in Islington:
“Overall, Islington’s built form is relatively low to medium rise… with the majority of buildings being between two to four storeys in height organised around a traditional street pattern. The few existing tall buildings are scattered throughout the Borough with a slightly greater concentration in the south-east section of Islington around the City Fringe. Many of these tall buildings are considered to be poor in architectural quality gnd use of moterials, and pay little regard to their local and broader setting. Inappropriately located poor quality tall buildings have blighted areas for decades, and prove difficult and costly to remove…(two pages later)…Islington’s predominantly residential areas are more sensitive to the impacts of tall buildings than commercial or mixed use areas. These areas are predominantly low to medium rise and privacy and local microclimate effects are of greater personal importance to people in locations where they live than where they work and shop. Thus because predominantly residential areas would be adversely impacted by overshadowing, overlooking and microclimate effects caused by tall buildings they have been removed from possible building areas. (NB. The south of the borough has a significantly finer grain urban character than the rest of Islington so more detailed analysis of the predominantly residential areas in the south is needed to determine their appropriateness for tall buildings. This is being addressed in the Bunhill and Clerkenwell Area Action Plan)”
21. Considering the area containing the appeal site, it states:
“Arsenal’s stadium and the LondonMet buildings are the dominant building forms in this area… Both the stadium and the LondonMet tower are significantly taller than the surrounding townscape which is predominantly under 30m. Although the stadium is a large structure, its height is not overly dominant on the area…”
The key element of this area is the stadium, which is the major landmark for this part of London. It is important to maintain views of the stadium to aid legibility of the area and help people navigate to this major land use. The stadium should remain the main focus for this area, with the Nag’s Head town centre being the principal centre. New tall buildings in this area would detract from the importance of Nags Head as the area’s centre and the landmark of the stadium, resulting in a confusing, illegible landscape.
22. The conclusion states at p 46
“The phase one and two of the analysis for possible locations for tall buildings in Islington has established that there are no locations where new tall buildings should be supported, other than possibly in the south of the borough.”
23. Mr Elvin emphasises the importance of the relevant London Plan policy and its emphasis on a contextual approach to design. I bear in mind all the passages set out in his skeleton and Policy 7.4 and 7.6 but quote only the following;
“POLICY 7.7 LOCATION AND DESIGN OF TALL AND LARGE BUILDINGS Strategic
A Tall and large buildings should be part of a plan-led approach to changing or developing an area by the identification of appropriate, sensitive and inappropriate locations. Tall and large buildings should not have an unacceptably harmful impact on their surroundings.
Planning decisions
B Applications for tall or large buildings should include an urban design analysis that demonstrates the proposal is part of a strategy that will meet the criteria below. This is particularly important if the site is not identified as a location for tall or large buildings in the borough’s LDF.
C Tall and large buildings should:
a generally be limited to sites in the Central Activity Zone, opportunity areas, areas of intensification or town centres that have good access to public transport
b only be considered in areas whose character would not be affected adversely by the scale, mass or bulk of a tall or large building
c relate well to the form, proportion, composition, scale and character of surrounding buildings, urban grain and public realm (including landscape features), particularly at street level;
d individually or as a group, improve the legibility of an area, by emphasising a point of civic or visual significance where appropriate, and enhance the skyline and image of London
e incorporate the highest standards of architecture and materials, including sustainable design and construction practices
f have ground floor activities that provide a positive relationship to the surrounding streets g contribute to improving the permeability of the site and wider area, where possible h incorporate publicly accessible areas on the upper floors, where appropriate i make a significant contribution to local regeneration.
D Tall buildings:
a should not affect their surroundings adversely in terms of microclimate, wind turbulence, overshadowing, noise, reflected glare, aviation, navigation and telecommunication interference
b should not impact on local or strategic views adversely
E The impact of tall buildings proposed in sensitive locations should be given particular consideration. Such areas might include conservation areas, listed buildings and their settings, registered historic parks and gardens, scheduled monuments, battlefields, the edge of the Green Belt or Metropolitan Open Land, World Heritage Sites or other areas designated by boroughs as being sensitive or inappropriate for tall buildings.
LDF preparation
E Boroughs should work with the Mayor to consider which areas are appropriate, sensitive or inappropriate for tall and large buildings and identify them in their Local Development Frameworks. These areas should be consistent with the criteria above and the place shaping and heritage policies of this Plan.”
Guidance from case law
24. There is no dispute about the legal principles the issue is their application. I will therefore refer only to the points upon which Counsel placed particular emphasis.
25. In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, a case relating to Scotland but applicable in England and Wales, the Supreme Court held that construction of a planning policy was a matter of law for a court. If a decision-maker errs regarding the interpretation of a policy of the development plan, then it is for the court to substitute the correct interpretation. At para. 18, Lord Reed(with whom Lord Hope DPSC and Lords Brown, and Dyson SCJJ agreed), held:
“The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle… policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development 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. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
And at 22
“It is of course true, as counsel for the respondents submitted, that a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion, on the question whether the proposal was in accordance with the policy, as it would have reached if it had construed the policy correctly. That is not however a complete answer to a challenge to the planning authority’s decision. An error in relation to one part of a policy might affect the overall conclusion as to whether a proposal was in accordance with the development plan even if the question whether the proposal was in conformity with the policy would have been answered in the same way.”
26. I was taken to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759 at 780 and Sullivan J. (as he then was) in R. (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74 for the point that the primary judgments of the planning decision-maker are ones which will generally not be disturbed by the Courts unless they are wrong in law or meet the high hurdle of irrationality.
27. I was also taken to cases that emphasise that the plan is applied not piece by piece but as a whole, in particular the decision of Langstaff J. in Blackburn with Darwen BC v Secretary of State [2011] EWHC 1923 (Admin) at [17]-[21]. This case and the others referred to emphasise that the ‘accordance’ of the determination with the development plan has to be ‘with the plan’, not in accordance with each relevant policy of the plan. Breach of any one policy in a development plan by a proposed development could not be said to be not in “in accordance with the plan”, given the numerous conflicting interests that development plans seek to reconcile. For the purposes of the section it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy in it.
28. I bear in mind that the duty to give reasons in a decision is not to be approached in an over-technical way: see Lord Brown in South Buckinghamshire County Council v. Porter (No. 2) [2004] 1 WLR 1953 at paras. 35-36.
Submissions of the Claimant
29. Ms Lieven QC for the Council submits as follows. Policy CS9 states that Islington has a predominantly medium to low level character and tall buildings are “generally inappropriate”. Tall buildings will not be supported, with the possible exception of in Bunhill and Clerkenwell, depending on the detailed assessment in the Bunhill and Clerkenwell Area Action Plan. Any tall building outside this very specific area (in the south of the Borough) is not in accordance with policy CS9.
30. The Inspector read the “generally” as allowing for the possibility that there might be part of the Borough where tall buildings could be appropriate. However, it is clear if CS9E is read as a whole that this is not what the policy meant. The exception to the “generally” lay in the last sentence of the policy, i.e. in the areas of Bunhill and Clerkenwell, and there was no individualised assessment to be carried out across the Borough as a whole. When he referred to Policy CS9, the Inspector did not recite the crucial last sentence, which provides that “Parts of the Bunhill and Clerkenwell key area may contain some sites that could be suitable for tall buildings”.
31. The correct construction is made clear by the supporting text in the Core Strategy, as well as the evidence base document. The conclusion reached in both of these documents is that there are no locations where new tall buildings should be supported, except possibly in the south of the Borough, which is not relevant for the purposes of this claim.
32. CS9 was based on a detailed evidence base which reaches the conclusion, after careful consideration of the data, that there should not be any new tall buildings in the area.
33. The Inspector was wrong to conclude that the development was consistent with policy CS9. This error was critical to his decision and renders the decision invalid. The policy dealing with tall buildings was not only the most relevant to the appeal site but it was also very recent and based on a detailed assessment across the Borough. Further, the policy had been subject to extensive consultation. Moreover, it is the only planning policy referred to in any detail by the Inspector.
34. Had the Inspector correctly construed CS9 then his analysis would necessarily have been wholly different, and it is highly likely that the appeal would have been rejected. This is particularly so due to the height of the development,78m when CS9 defines tall buildings as those over 30m.
35. If the Inspector had properly directed himself with regard to the policy, he would have had to weigh up the clear non-conformity with the Core Strategy against any other material considerations. This is a very different exercise from the one he actually carried out in the decision letter.
Defendant’s submissions
36. Mr Elvin submits that the Council adopts a narrow approach to the interpretation on one part of CS9, outside the context of the development plan as a whole, and relies heavily on material in the evidence base to which the statutory duties do not primarily apply. The Council’s approach ignores the proper context of the policy and argues for an unduly strict construction of CS9.
37. As Lord Reed made clear at [19] of Tesco v. Dundee a planning policy is meant to be applied by planning decision-makers (and considered by developers and their advisors as well as the general public) and must be read as a whole and in the context of the relevant elements of the development plan.
38. Mr Elvin then gives three reasons why the application is misconceived.
39. First he submits that the construction of the CS9 adopted by the Council is wrong when read in context. The wording that tall buildings (above 30m high) are “generally inappropriate to Islington’s predominantly medium to low level character” does not preclude all such buildings in all cases. Had it been intended that no such buildings were to be regarded as acceptable in the borough in policy terms, it would have been simple to state that and to do so clearly. The fact that part of the borough may be considered suitable for tall buildings simply means that there is an area where the “generally inappropriate” characterisation does not apply. This policy does not mean that tall buildings will not be appropriate outside the areas noted in the final sentence but that they are considered “generally inappropriate” i.e. they will have to be justified specifically. “Generally” is an expression redolent of exceptions not of a bright line.
40. Secondly the matter needs to be looked at as a whole and in the round. The agreed issue encompassed a number of relevant policies and general impacts and design issues in planning terms. It is therefore highly relevant when considering its broad meaning and effect as planning policy in the DP context that what the Inspector was asked to consider was agreed by the Council and the parties were putting forward a case based on a number of policies from both the LP and CS in which context CS9 had to be considered. The point made in the Claim was not one made by the Council during the appeal and officers accepted that the main issue in the appeal (recorded at DL 13) would be determinative of policy compliance and the appeal generally. The parties, having considered the policies set out their respective statements, doubtless concluded that applying the development plan as a whole this issue resolved the application of those policies as a whole
41. The statutory duties apply to the DP not to the evidence base and what is properly relevant are the terms of the final adopted policy together with the Inspector’s own assessment of the merits of the application in context. To the extent that the Court considers it should embark upon a wider investigation urged by the Council, it is even more relevant to consider the development plan context including the lack of prescription in the London Plan and the contextual judgments required by 7.4. 7.6 and 7.7 as well as the context of CS9 as a whole.
42. Thirdly even if an error has been made the Court should exercise its discretion not to quash the DL since there is not a “real possibility that the consideration of the matter would have made a difference to the decision”. See Glidewell L.J. in Bolton v. Greater Manchester Waste Authority (1990) 61 P & CR 343 at 352-3.The terms in which the main issue was formulated, agreed and considered, mean that the Inspector would not have reached a different conclusion had he concluded there was a breach of CS9(E) and considered other material considerations. There were no other material considerations in Appeal A which militated against development and the Inspector had already considered the design and context of the proposals.
Decision of the Court
43. A policy such as CS9 is not to be construed like a contract but to arrive at its meaning I must obviously consider the words used in context and, where there is doubt, look at the surrounding facts and material. Reading CS9 the meaning of CS9E is, as I see it, that tall buildings are inappropriate and will not be supported except in the Bunhill and Clerkenwell area. Of course these are matters of impression but the meaning of “generally inappropriate” is coloured by the fact that the words “will not be supported” appear in the same sentence. That meaning is also pointed to by the fact that the sentence that immediately follows explains that there are two areas, not Upper Holloway, that “may” contain some sites that “could” be suitable for tall buildings. Broadening the focus from CS9E to the remainder of CS9 and to the wider context, as I see it, make no difference. I accept that Mr Elvin’s construction has attractions given an expectation that a policy is more likely to be flexible than explicit. But the argument falls away when one considers the supporting text, most obviously 3.1.5 on the previous page. While the statutory duty may not apply to the evidence base this material remains available to help one arrive at the meaning of the policy. The text and other material relied upon by Ms Lieven seem to me to put the matter beyond any doubt. The proposed development does therefore conflict with CS9.
44. The policy cannot of course been seen in isolation for the reasons given above. Breach of a policy does not mean breach of a development plan. There may be many policies in play some of which may conflict. Further many policies are equivocal and can reasonably be read in different ways. However CS9 is explicit and, on this particular issue, stands alone on the question of tall buildings as the DL makes clear. The Inspector identifies and applies CS9 at DL17 and 22 referring only in general terms to the other policies comprising the plan. In approaching the meaning of the DL I bear in mind the guidance referred to above. There is however no room for misunderstanding what the Inspector says. The clarity and quality of the Decision were acknowledged by both sides. No aspects of the other relevant policies have been identified which, given a breach of CS9, make the proposed development accord with the development plan.
45. There is no doubt that the Council omitted to take the points on this application when the appeal was before the Inspector. The position is as submitted by Mr Elvin, as Ms Lieven conceded at the hearing. The reasons for that approach may or may not be those put forward by Mr Elvin. On the appeal Ashburton was represented by four senior professionals, the Council by only one, a Principal Planning Officer.
46. The Council is however entitled to take the point of law raised on this application. Its previous approach, and the other matters put forward, do not seem to me to justify taking the broad view of the matter which forms the second of Mr Elvin’s submissions. The Core Strategy is recent and was the result of widespread consultation in the community and careful evaluation. The public are entitled to be able to rely on it as the policy applicable to the issue of tall buildings. A proposed development may be permitted despite being in conflict with the development plan but only after consideration has been given to whether material considerations so indicate.
47. I agree with Ms Lieven that the exercise of weighing up non conformity with the Core Strategy against other material considerations is a distinctly different exercise from that carried out in the DL. I am not prepared to assume that if that exercise is carried out the same outcome is inevitable. It follows that the application succeeds and the Decision will be quashed.
48. As I have pointed out the high quality of the Inspector’s decision was acknowledged by both sides. As a result of the approach taken by the parties at the appeal the issue raised on this application was not referred to at all. This outcome is thus no criticism of the Inspector. This is not a case where he can be said not to have had his eye on the ball. The ball was simply not in play.
49. I shall be grateful if Counsel will send me corrections of the usual kind and a draft order, both preferably agreed, not less that 48 hours before hand down of this judgment together with a note of any matters they wish to raise at the hearing. If these matters can be agreed the parties need not attend the hand down.
