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

Factual and Procedural Background

The case concerns the "Good Intent" public house located in Holloway, North London, surrounded largely by residential areas and adjacent to a park. In May 2013, the Secretary of State for Communities and Local Government, via a planning inspector, approved a developer's application to demolish the public house and replace it with a three-storey building containing six townhouses. The application was initially made by the developer, Company A, but the local planning authority, Company B, failed to determine it within the statutory period, prompting an appeal under section 78 of the Town and Country Planning Act 1990.

Company B subsequently applied under section 288 of the 1990 Act to quash the inspector's decision, arguing that the approval was based on an error of law related to a specific provision in its draft planning policy DM 27. The central question was whether planning permission could be granted despite non-compliance with an explicit policy criterion, provided the overall policy objectives were met.

Legal Issues Presented

1. Whether a planning inspector may lawfully grant planning permission despite an express policy requirement not being met, if the overall aims of the policy are satisfied.
2. Whether the inspector erred in law by failing to give proper effect to the requirement in draft policy DM 27 that a public house must be vacant for two continuous years with continuous marketing evidence before redevelopment can be permitted.

Arguments of the Parties

Appellant's Arguments (Company B)

• The inspector misinterpreted the planning policy DM 27, leading to an error of law.
• Interpretation of planning policy is a matter of law, and the inspector failed to apply the strict, bright-line test requiring two years of vacancy and continuous marketing evidence.
• The test in DM 27 was deliberately exacting and required detailed marketing evidence, as specified in Appendix 11, which was not provided.
• The inspector disregarded the clear policy designed to retain public houses, resulting in a materially different and unlawful outcome.
• This misinterpretation undermines the application of other policies in the Council's Development Management Policies relying on the same vacancy and marketing evidence test.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating fundamental principles of planning policy interpretation as set out in Tesco Stores Ltd v Dundee City Council, emphasizing that policies are designed to guide but allow for discretion and judgment. The policy DM 27 required a strict condition that a public house must be vacant for two continuous years with continuous marketing evidence before redevelopment is permitted.

However, the court recognized that the policy must be interpreted in its proper context and purpose, which was to place significant hurdles on the loss of public houses that have historic or community value and whose loss would detrimentally affect the area. The inspector acknowledged that the "Good Intent" did not meet the vacancy and marketing criteria but found, based on other evidence including expert reports and financial accounts, that the public house was not viable and unlikely to be taken over by another operator.

The inspector also found that the "Good Intent" was not of particular value to the local community nor integral to the urban fabric or historic character that the policy sought to protect. The court held that the inspector had correctly understood the policy, acknowledged the conflict with its wording, and exercised proper planning judgment in concluding that the overall aims of the policy had been satisfied despite the absence of strict compliance with the vacancy and marketing evidence requirements.

The court rejected the appellant's submission that the inspector's approach was an error of law, holding that the application of policy to facts involved judgment and was not irrational or perverse. The inspector’s decision was therefore lawful.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the planning permission granted by the inspector remains valid. The ruling confirms that while planning policies with strict criteria must be given proper regard, decision-makers may depart from literal compliance if the overall policy objectives are met and the circumstances justify such a judgment. No new precedent was established beyond reaffirming established principles of planning policy interpretation and the lawful exercise of discretion by planning inspectors.