Where a planning application complies with some policies in the development plan, but is at variance with others, the decision maker’s task is to look at the whole plan and decide whether the application accords with it.
Development plans are full of broad statements of policy, many of these may be irreconcilable to each other, so that in a particular case one has to yield to another.
Also, many development plans’ provisions use language which requires the exercise of judgment before they can be applied to the facts.
Where policies pull in different directions the decision maker will have to decide which is the dominant policy, whether one policy compared to another is directly, as opposed to obliquely relevant, or should be the one to be given the greater weight.
In Arsenal Football Club Plc v Secretary of State for Communities And Local Government & Anor  the claimant, Arsenal Football Club Ltd (“the Club”), applied under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a Planning Inspector’s decision to refuse the Club’s application under section 73 of the 1990 Act to vary the conditions which Islington London Borough Council (“Islington”) had attached to two previous planning permissions for the Emirates Stadium. The application had been 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.
Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that the determination of a planning application “must be made in accordance with the [development] plan unless material considerations indicate otherwise”. The Club’s claim was based on the single ground that the Inspector incorrectly applied section 38(6) in deciding whether the Club’s application complied with the development plan for the area.
As to the Development Plan policies Policy CS14 of the Islington Core Strategy supported retail and service providers for economic development and the enhancement of existing cultural uses.
Within the strategic part of the London Plan, Policy 4.6 stated that “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” should be supported.
Development Management Policy DM4.10 favoured public houses.
However Islington’s Development Management Policies made entertainment and night-time activities generally inappropriate outside town centres where applicants would need to demonstrate that such uses would not result in such as noise and anti-social behaviour, particularly late at night, adverse to residential amenities.
Policy DM4.3, on the location and concentration of uses, stated that various leisure proposals would be resisted where they would cause unacceptable disturbance or would detrimentally affect the amenity, character and function of an area.
As to noise nuisance DM6.1, “healthy development”, stated:
“……….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 notes to DM6.1 explained that where potentially noisy developments, such as entertainment venues were proposed within residential areas, Islington would expect the use not to give rise to noise nuisance.
The Club denied that there would be a breach of those development management policies. That was a major issue in the case.
On appeal the Inspector had taken into account all relevant planning policies within 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 decision letter itself.
The Inspector had stated that the scheme would give rise to economic benefits, albeit not as great as claimed by the club.
It had been for the Inspector to resolve the tension between the different policies. He had done this.
He had to contend with the Development Management Policies (with their supporting text), which he judged negatives for the proposal, and, what he judged positives for the proposal – namely the vaguer encouragement of economic and cultural activities in the Islington Core Strategy CS14 and London Plan. Development Management Policy DM4.10 favoured public houses.
As it turned out the Inspector had given greatest weight to the three Islington Development Management policies with reference to the noise and the impact of the proposal on the living conditions of nearby residents.
The Inspector found that there would be breaches of DM4.2, DM4.3 and DM6.
The Inspector did consider the policies on economic and cultural development, but concluded that the club’s case on these was overblown and the benefits limited.
The policies pulled in different directions and it had been the Inspector’s task to exercise his planning judgment and place such weight on them as he considered appropriate.
He had found the development management policies on amenity dominant and the fact the Club would be breach of them decisive. There was nothing wrong in him doing this.
Where there would be contravention of development management policies, planning permission should not be granted. Economic objectives ought not to be pursued at all costs and there had to be reasonable limits on the extent to which land can be used. Again the court could not disagree.
The High Court dismissed the Club’s application under section 288 of the 1990 Act.
This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.