Islington Borough Council v Secretary of State for Communities And Local Government & Anor

Planning policies must be interpreted objectively, according to their language, context and purpose. They are not construed as statutes or contracts, and may require planning judgment where their application to facts is evaluative. A decision-maker must nevertheless understand and acknowledge the policy’s actual requirements. Approval may be granted despite non-compliance with a detailed criterion where, properly understood in context, the policy’s overall aim has been satisfied and the decision-maker has lawfully assessed the significance of the conflict. The resulting application of policy to facts is ordinarily a matter of planning judgment, challengeable only on public law grounds such as irrationality or perversity.

TGI Taverns appealed under section 78 of the Town and Country Planning Act 1990 after Islington Borough Council failed to determine an application to demolish the Good Intent public house and build six townhouses. A planning inspector granted permission, attaching weight to draft policy DM 27, which supported retention of public houses and required, among other matters, two years’ vacancy and continuous marketing evidence.

The Council applied under section 288 of the 1990 Act to quash the inspector’s decision, arguing that the inspector had unlawfully treated the policy’s overall aims as satisfied despite the express vacancy and marketing requirements. The central issue was whether planning permission could lawfully be granted despite failure to meet that criterion.

1. The claim was dismissed. The inspector had not erred in law by concluding that the overall aim of draft policy DM 27 was satisfied despite the absence of a two-year vacancy and continuous marketing evidence.

2. Planning policy is interpreted objectively in accordance with the language used, read in its proper context. As explained by Lord Reed in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983, policies are intended to promote consistency while allowing flexibility. They are not construed as statutory or contractual provisions, and their broad statements may require the exercise of planning judgment.

3. The policy’s purpose was not to retain every public house. Its context showed particular concern for premises with historic character, community function or particular local value, and whose removal would harm the street scene or area vitality.

4. The inspector correctly recognised the conflict with the policy’s wording. He then assessed its significance by considering the evidence that the premises could not operate as a viable business, the absence of a realistic alternative operator and the finding that it was not of particular value to the local community. That was a lawful planning judgment.

5. The application of policy to the facts could be challenged only if irrational or perverse, consistent with the principle referred to in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759. The inspector’s decision was thoughtful and legally unimpeachable.

The judgment describes a planning inspector’s decision dated 1 May 2013 granting permission on a section 78 appeal against non-determination. The Council’s section 288 challenge to that decision was dismissed by the Administrative Court.