In Mayor and Burgesses of the London Borough of Islington [2012] EWHC 1716 (Admin) the council had challenged under section 288 of the Town and Country Planning Act 1990 a decision of an inspector to grant planning permission, following a hearing, for a mixed-use development. The principal components were 5,280 square metres of industrial floor space for use by the developer itself for the purpose of growing its existing business, and 575 units of student accommodation. The latter essentially amounted to enabling development, since the scheme was not financially viable without it.
Policy CS2 of a Core Strategy promoted by the council provided for the regeneration of the area within which the appeal site lay, but Policy CS 12.1 restricted the provision of student accommodation outside two defined areas, neither of which included the appeal site. The inspector recognised that the locational thrust of Policy CS12.1, a policy to which she gave significant weight, was against student accommodation but concluded that the retention of a valuable local business and the regeneration benefits which generally complied with Policy CS2 were such as to outweigh the restrictive nature of Policy CS12.1. On that basis, she allowed the appeal. The court refused to quash her decision.
While this case is very much one on its own facts, and might generally not attract comment, it does serve to issue a basic reminder about the development plan in this context. The Core Strategy had been emerging for two years before the hearing took place. Shortly before the hearing, it was pronounced sound following an examination in public. Two days after the hearing, the council adopted it. The inspector’s decision was issued a month later.
The effect of section 70(2) of the 1990 Act is that in dealing with a planning application, the decision maker must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. The effect of section 38(6) of the Planning and Compulsory Purchase Act 2004 is that the application must then be determined in accordance with the development plan, unless material considerations indicate otherwise. What is settled law is that for both purposes, “the development plan” means the plan as its stands at the time of making the decision. In a case like the present one, that means at the date of the inspector’s decision letter.
John Martin
