London Borough of Islington v Secretary of State for Communities and Local Government & Ors

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a development must be assessed against the Development Plan as a whole. A proposal may conflict with one restrictive policy yet accord with the plan overall, or be permitted where material considerations outweigh that conflict. Policy interpretation is a matter for the court, but a decision-maker need not use a particular formula when explaining the policy framework. Viability may be established by different forms of evidence; a comparative financial study is not invariably required. A factual error will not invalidate a planning decision where nothing significant turns on it.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal against refusal of planning permission. The proposed mixed-use development included new premises for an established local business, conventional housing, student accommodation and employment floorspace.

After the appeal hearing, the claimant adopted a Core Strategy forming part of the Development Plan. The claimant argued that the inspector had misunderstood the status and restrictive effect of the student-accommodation policy, and had reached an inadequately evidenced conclusion that conventional housing would not produce a viable scheme. The central issues were whether the inspector had lawfully applied the Development Plan and whether her reasoning on viability was adequate.

1. The application was dismissed. The inspector’s conclusion on viability was lawful and was central to her treatment of the policy.

2. The relevant question was whether a scheme retaining and modernising the local business, funded by enabling development, would be viable. The inspector was entitled to rely on evidence concerning the unsuccessful search for alternative premises, the difficulties of combining conventional housing with the existing businesses, planning restrictions affecting such a mix, and the risk to the business’s continued operation. Viability evidence may take different forms. The absence of a comparative financial study did not mean that there was no evidence.

3. The student-accommodation policy was not misinterpreted. The site was outside the two preferred areas and was therefore within the area where student accommodation was restricted. That restriction was not an absolute bar. The inspector was entitled to find that site-specific circumstances, the retention and growth of an important local employer, and regeneration benefits outweighed the policy’s restrictive thrust.

4. Section 38(6) required consideration of whether the proposal accorded with the Development Plan as a whole, rather than with each policy considered in isolation. The proposal did not accord with the locational thrust of the student-accommodation policy, but material considerations indicated that permission should nevertheless be granted.

5. The inspector had treated the Core Strategy as part of the Development Plan at the date of her decision. No particular formula was required. Her use of the expression “significant weight” did not establish that she had misunderstood its status. The error describing the business as the second largest private employer was immaterial because nothing significant turned on its precise ranking.

The judgment concerned a first-instance challenge under section 288 of the Town and Country Planning Act 1990 to a planning inspector’s decision allowing an appeal against the claimant’s refusal of permission.