Development – Planning Permission – Planning policy – Claimants refusing application by second defendant to erect tall building as breaching planning policy – Inspector appointed by first defendant Secretary of State defendant allowing appeal – Claimants seeking to quash inspector’s decision — Whether inspector misinterpreting relevant planning policy – Application granted
The second defendant applied for planning permission for the demolition and clearance of existing buildings on a site in Islington, North London and the erection of a 25-storey tower which would reach a height of about 78 metres. The claimant local authority refused the application on the ground that the proposed development would be contrary to policy CS9 of the core strategy.
The second defendant exercised it right of appeal against that refusal under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the first defendant secretary of state allowed the appeal, finding that the development would not adversely affect the character and appearance of the area and did not conflict with the relevant development plan.
The claimants applied to quash the inspector’s decision under section 288 of the 1990 Act, contending that the inspector had misinterpreted policy CS9 when allowing the appeal. Policy CS9 stated that Islington had a predominantly medium to low level character and tall buildings were “generally inappropriate”. Tall buildings would not be supported, with the possible exception of an area in the south of the borough, depending on the detailed assessment in the area action plan. Any tall building outside that very specific area was not in accordance with policy CS9.
The inspector had read the word “generally” as allowing for the possibility that there might be part of the borough where tall buildings could be appropriate. However, it was clear, reading CS9E as a whole that that was not what the policy meant. The exception to the “generally”” lay in the specific named areas south of the borough. There was no individualised assessment to be carried out across the borough as a whole. The correct construction was made clear, by the supporting text in the core strategy and the evidence base document, that there were no locations where new tall buildings should be supported, except possibly in the south of the borough, which was not relevant for the purposes of the present claim.
Held: The application was granted.
(1) The construction of a planning policy was a matter of law for a court. If a decision-maker erred regarding the interpretation of a policy of the development plan, it was for the court to substitute the correct interpretation. The primary judgments of the planning decision-maker were ones which would generally not be disturbed by the courts unless they were wrong in law or met the high hurdle of irrationality. Further, the plan had to be applied, not piece by piece, but as a whole. The “accordance” of the determination with the development plan had to be “with the plan”, not in accordance with each relevant policy of the plan. It could not be said that breach of any one policy in a development plan by a proposed development was not “in accordance with the plan”, given the numerous conflicting interests that development plans sought to reconcile. It was enough that the proposal accorded with the development plan considered as a whole. It did not have to accord with each and every policy in it.
Moreover, the duty to give reasons in a decision was not to be approached in an over-technical way: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 PLR 72, R (on the application of Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74; [2001] PLSCS 30, Blackburn with Darwen Borough Council v Secretary of State [2011] EWHC 1923 (Admin) and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
(2) A policy such as CS9 was not to be construed like a contract but to arrive at its meaning the court had to consider the words used in context and, where there was doubt, look at the surrounding facts and material. Reading CS9, the meaning of CS9E was that tall buildings were inappropriate and would not be supported except in the specific areas named sought of the borough. Although those were matters of impression, the meaning of “generally inappropriate” was coloured by the fact that the words “will not be supported” appeared in the same sentence and broadening the focus from CS9E to the remainder of CS9 and to the wider context, made no difference. While the statutory duty might not apply to the evidence base, that material remained available to help one arrive at the meaning of the policy. The text and other material relied upon by the claimants put the matter beyond any doubt. Therefore, the proposed development did conflict with CS9. No aspects of the other relevant policies had been identified which, given a breach of CS9, made the proposed development accord with the development plan. It could not be assumed that, if the exercise of weighing up non-conformity with the core strategy against other material considerations was carried out, the same outcome would be inevitable. It followed that the decision would be quashed.
Nathalie Lieven QC (instructed by Islington Borough Council Legal Department) appeared for the claimants; The first defendant did not appear and was not represented; David Elvin QC (instructed by David Cooper & Co) appeared for the second defendant.
Eileen O’Grady, barrister
