Ashburton Trading Ltd v Secretary of State for Communities And Local Government & Anor

This is an appeal from the judgment of HHJ Mackie QC sitting as a deputy High Court Judge whereby he allowed the appeal of the London Borough of Islington (“the Council”) under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) and quashed the decision of the Secretary of State (through his planning inspector) to grant Ashburton Trading Limited (“Ashburton”) planning permission to construct a 25 storey building on land at 45 Hornsey Road, Islington, London N7. Ashburton is a trading entity of Arsenal football club. The proposed development is part of the regeneration of the area alongside the railway line north-east of the Hornsey Road close to the club’s Emirates Stadium. The appeal in respect of the proposal to construct a 25 storey building was referred to as Appeal A. An alternative proposal to construct a 16 storey building which was the subject of Appeal B was dismissed by the inspector. There has been no challenge to the decision in respect of Appeal B.

Section 78 of the 1990 Act provides that, where a local planning authority refuses an application for planning permission, the applicant may appeal to the Secretary of State. Section 288 provides that, if any person is aggrieved by a decision made under section 78 on the grounds that it was not within the powers of the 1990 Act or that any relevant requirements were not complied with, he may make an application to the High Court.

The statutory development plan comprises (i) the London Plan 2011 (“LP”) and (ii) the Islington Core Strategy (“CS”).

The LP provides:

“POLICY 7.4 LOCAL CHARACTER

Strategic

A Development should have regard to the form, function, and structure of an area, place or street and the scale, mass and orientation of surrounding buildings. It should improve an area’s visual or physical connection with natural features. In areas of poor or ill-defined character, development should build on the positive elements that can contribute to establishing anenhanced character for the future function of the area.

Planning decisions

B Buildings, streets and open spaces should provide a high quality design response that:

a has regard to the pattern and grain of the existing spaces and streets in orientation, scale, proportion and mass

b contributes to a positive relationship between the urban structure and natural landscape features, including the underlying landform and topography of an area

c is human in scale, ensuring buildings create a positive relationship with street level activity and people feel comfortable with their surroundings

d allows existing buildings and structures that make a positive contribution to the character of a place to influence the future character of the area

e is informed by the surrounding historic environment.

LDF preparation

C Boroughs should consider the different characters of their areas to identify landscapes, buildings and places, including on the Blue Ribbon Network, where that character should be sustained, protected and enhanced through managed change. Characterisation studies can help in this process.”

.........

POLICY 7.7 LOCATION AND DESIGN OF TALL AND LARGE BUILDINGS

Strategic

A Tall and large buildings should be part of a plan-led approach to changing or developing an area by the identification of appropriate, sensitive and inappropriate locations. Tall and large buildings should not have an unacceptably harmful impact on their surroundings.

Planning decisions

B Applications for tall or large buildings should include an urban design analysis that demonstrates the proposal is part of a strategy that will meet the criteria below. This is particularly important if the site is not identified as a location for tall or large buildings in the borough’s LDF.

C Tall and large buildings should:

a generally be limited tosites in the Central Activity Zone, opportunity areas, areas of intensification or town centres that have good access to public transport

b only be considered in areas whose character would not be affected adversely by the scale, mass or bulk of a tall or large building

c relate well to the form, proportion, composition, scale and character of surrounding buildings, urban grain and public realm (including landscape features), particularly at street level;

d individually or as a group, improve the legibility of an area, by emphasising a point of civic or visual significance where appropriate, and enhance the skyline and image of London

e incorporate the highest standards of architecture and materials, including sustainable design and construction practices

f have ground floor activities that provide a positive relationship to the surrounding streets

g contribute to improving the permeability of the site and wider area, where possible

h incorporate publicly accessible areas on the upper floors, where appropriate

i make a significant contribution to local regeneration.

D Tall buildings:

a should not affect their surroundings adversely in terms of microclimate, wind turbulence, overshadowing, noise, reflected glare, aviation, navigation and telecommunication interference

b should not impact on local or strategic views adversely

E The impact of tall buildings proposed in sensitive locations should be given particular consideration. Such areas might include conservation areas, listed buildings and their settings, registered historic parks and gardens, scheduled monuments, battlefields, the edge of the Green Belt or Metropolitan Open Land, World Heritage Sites or other areas designated by boroughs as being sensitive or inappropriate for tall buildings.

LDF preparation

F Boroughs should work with the Mayor to consider which areas are appropriate, sensitive or inappropriate for tall and large buildings and identify them in their Local Development Frameworks. These areas should be consistent with the criteria above and the place shaping and heritage policies of this Plan.”

The CS provides:

“Policy CS9

Protecting and enhancing Islington’s built and historic environment

High quality architecture and urban design are key to enhancing and protecting Islington’s built environment, making it safer and more inclusive.

A.

The borough’s unique character will be protected by preserving the historic urban fabric and promoting a perimeter block approach, and other traditional street patterns in new developments, such as mews. The aim is for new buildings to be sympathetic in scale and appearance and to be complementary to the local identity.

B.

The historic significance of Islington’s unique heritage assets and historic environment will be conserved and enhanced whether designated or not. These assets in Islington include individual buildings and monuments, parks and gardens, conservation areas, views, public spaces and archaeology. Active management of conservation areas will continue, through a programme of proactive initiatives for the conservation-led regeneration of historic areas, and potential designation of new conservation areas. Archaeological Priority Areas will continue to be defined on the proposals map to assist in the management of these historic assets.

C.

Where areas of Islington suffer from poor layout, opportunities will be taken to redesign them by reintroducing traditional street patterns and integrating new buildings into surviving fragments of historic fabric. Reconfiguration based on streets and a perimeter block approach will be a key requirement for new developments, in particular housing estate renewal.

D.

All development will need to be based on coherent street frontages and new buildings need to fit into the existing context of facades. Housing developments should not isolate their residents from the surrounding area in 'gated' communities.

E.

New buildings and developments need to be based on a human scale and efficiently use the site area, which could mean some high density developments. High densities can be achieved through high quality design without the need for tall buildings. Tall buildings (above 30m high) are generally inappropriate to Islington's predominantly medium to low level character, therefore proposals for new tall buildings will not be supported. Parts of the Bunhill and Clerkenwell key area may contain some sites that could be suitable for tall buildings, this will be explored in more detail as part of the Bunhill and Clerkenwell Area Action Plan.

F.

New homes need to provide dual-aspect units with clear distinction between a public side and a quieter private side with bedrooms.

G.

High quality contemporary design can respond to this challenge as well as traditional architecture. Innovative design is welcomed, but pastiche will not be acceptable. The council will establish new advisory mechanisms to ensure the highest standards of architecture and environmental design.

H.

The Development Management Policies and other documents will provide further policies in relation to urban design and heritage. Detailed guidance on urban design in Islington is provided in the Islington Urban Design Guide (IUDG) Supplementary Planning Document.”

The supporting text explaining Policy CS9 states at para 3.1.5:

“An evidence base assessment has been conducted to determine if there are any suitable locations for tall buildings in Islington. This assessment has concluded that there are no locations suitable for additional tall buildings outside the south of the borough and this area of Islington is being covered in detail by the Bunhill and Clerkenwell Area Action Plan (AAP). It is considered that the AAP and its evidence base is the appropriate policy document to determine if tall buildings are acceptable in this area and if so where. A specific assessment for tall building locations has been undertaken as part of an urban design study for the Bunhill and Clerkenwell Area Action Plan.”

The evidence base assessment referred to in para 3.1.5 was published as “Tall Buildings evidence base to inform Core Strategy 2010”. It included the following at p 84:

“Arsenal’s stadium and the LondonMet buildings are the dominant building forms in this area … Both the stadium and the LondonMet tower are significantly taller than the surrounding townscape which is predominantly under 30m. Although the stadium is a large structure, its height is not overly dominant on the area …

…

The key element of this area is the stadium, which is the major landmark for this part of London. It is important to maintain views of the stadium to aid legibility of the area and help people navigate to this major land use. The stadium should remain the main focus for this area, with the Nag’s Head town centre being the principal centre. New tall buildings in this area would detract from the importance of Nags Head as the area’s centre and the landmark of the stadium, resulting in a confusing, illegible landscape;”

and at p 96:

“The phase one and two of the analysis for possible locations for tall buildings in Islington has established that there are no locations where new tall buildings should be supported, other than possibly in the south of the borough.”

Section 70(2) of the 1990 Act provides:

“In dealing with [such] an application [for planning permission] the authority shall have regard to—

(a)

the provisions of the development plan, so far as material to the application,

(b)

any local finance considerations, so far as material to the application, and

(c)

any other material considerations.”

Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) provides:

“[i]f regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

It is also relevant to note that section 17(5) of the 2004 Act provides:

“If to any extent a policy set out in a local development plan conflicts with any other statement or information in the document the conflict must be resolved in favour of the policy.”

At DL 13, the inspector said:

“The main issue is the effect of the proposed 24/25 storey tower on the character and appearance of the area surrounding the appeal site.”

He noted at DL16 that:

“The character of the area within which the appeal site is situated is quite unlike that of the area to the north-west of the railway line, either side of Holloway Road, which is predominantly occupied by 2/3 storey terraced housing……The scale and height of development in the area contrasts with that on the other side of the railway line.”

At DL 17, he said:

“CS policy CS9 states that buildings over 30 metres high are “…generally inappropriate to Islington’s predominantly medium to low level character…” The area to the north-west of the railway line is of medium to low level character and a building more than 30 metres high in that area would be inappropriate. But the inclusion of the word ‘generally’ in the policy provides for the possibility that there may be parts of the Borough, not of medium to low level character, where a building more than 30 metres high would not be inappropriate. The area to the south-east of the railway line is one such area. In this area large scale, tall buildings predominate and it has a high level character. A building more than 30 metres high in this area would not be out of scale with its surroundings, would not be contrary to the character of the area, would not be appropriate, and would not be in conflict with the thrust of policy CS9, which seeks to protect areas of medium to low level character from inappropriately high development.”

At DL 18, the inspector noted that the work of the architects was “characterised by exemplary attention to detail and by the use of high quality,durable, materials”. At DL 19-22, he reviewed the design of the scheme and concluded:

“The 25 storey tower would be architecture of high quality, would be a successful addition to the built environment of the Borough, and would not harm the character and appearance of the area surrounding the appeal site.”

At DL 29, he expressed his conclusions as follows:

“The proposed development would not adversely affect the character and appearance of the area and does not conflict with the Development Plan. Planning permission for the development, subject to conditions, has thus been granted.”

The conditions imposed were set out in a Schedule to the DL.

The Council challenged the DL on a single ground, namely that at para 17 the inspector had misconstrued CS9(E) in holding that the inclusion of the word “generally” allowed for the possibility that there may be parts of the borough outside the south of the borough where a building more than 30 metres in height would be appropriate.

The judge upheld the challenge. The core of his reasoning is at para 43 of his judgment:

“A policy such as CS9 is not to be construed like a contract but to arrive at its meaning I must obviously consider the words used in context and, where there is doubt, look at the surrounding facts and material. Reading CS9 the meaning of CS9E is, as I see it, that tall buildings are inappropriate and will not be supported except in the Bunhill and Clerkenwell area. Of course these are matters of impression but the meaning of “generally inappropriate” is coloured by the fact that the words “will not be supported” appear in the same sentence. That meaning is also pointed to by the fact that the sentence that immediately follows explains that there are two areas, not Upper Holloway, that “may” contain some sites that “could” be suitable for tall buildings. Broadening the focus from CS9E to the remainder of CS9 and to the wider context, as I see it, make no difference. I accept that Mr Elvin's construction has attractions given an expectation that a policy is more likely to be flexible than explicit. But the argument falls away when one considers the supporting text, most obviously 3.1.5 on the previous page. While the statutory duty may not apply to the evidence base this material remains available to help one arrive at the meaning of the policy. The text and other material relied upon by Ms Lieven seem to me to put the matter beyond any doubt. The proposed development does therefore conflict with CS9. ”

On the question of whether he should refuse to quash the inspector’s decision on the grounds that, (as contended on behalf of Ashburton) if he had adopted the correct interpretation of CS9, he would have reached the same conclusion, the judge said:

“I agree with Miss Lieven that the exercise of weighing up non conformity with the Core Strategy against other material considerations is a distinctly different exercise from that carried out in the DL. I am not prepared to assume that if that exercise is carried out the same outcome is inevitable. It follows that the application succeeds and the Decision will be quashed.”

The principal submission of Mr Elvin QC is that the judge adopted an unduly narrow approach to the interpretation of CS9(E) when read in the light of the CS as a whole and the LP. Properly construed, he says that it means that tall buildings are generally inappropriate throughout the borough, but may exceptionally be appropriate anywhere in the borough: they are generally inappropriate to the borough’s predominantly medium to low level character, but exceptionally may be appropriate anywhere in the borough. The purpose of the last sentence of CS9(E) is to identify one area (Bunhill and Clerkenwell) where exceptions to the general policy may be appropriate. But the possibility of tall buildings being appropriate in that area as an exception to the general rule does not imply that tall buildings may not also be considered appropriate elsewhere in the borough. On the judge’s interpretation, the word “generally” serves no useful purpose and is surplusage. That is because on his approach, CS9(E) sets out a policy that tall buildings will not be permitted anywhere in the borough, subject to the exception that they may be permitted in the Bunhill and Clerkenwell area. On the judge’s interpretation, there is no need by the use of the word “generally” to qualify the policy that, subject to this exception, tall buildings are not permitted anywhere in the borough. The court should lean against an interpretation which treats words as surplusage.

Mr Elvin submits that, if CS9(E) does not bear the meaning for which he contends, then it is at least ambiguous and as capable of bearing this meaning as that which the judge adopted. If that is right, para 3.1.5 (on which the judge placed considerable reliance) is of little or no relevance. That is because, on this footing, there is a conflict between CS9(E) and another statement, namely its supporting text and the conflict must be resolved in favour of the policy: see section 17(5) of the 2004 Act. Alternatively, Mr Elvin submits, para 3.1.5 should be given little weight.

Finally, Mr Elvin also submits that, when interpreting CS9(E), it is necessary to take into account the fact there is no provision in the LP which corresponds with CS9(E). The emphasis in the LP is on matters of planning judgment which the Inspector addressed in an exemplary manner of which there has been no criticism. In short, the judge was wrong to concentrate on a narrow interpretation of CS9(E) to the exclusion of other parts of the development plan.

I would reject these submissions essentially for the reasons given by the judge and advanced by Miss Lieven QC. The starting point is the correct interpretation of CS9(E). That is a question of law for the court: see Tesco Stores Limited v Dundee City Council [2012] PTSR 983 at paras 17 to 21 per Lord Reed. Policy statements are not to be construed as if they are statutory or contractual provisions. But as Lord Reed said at para 18:

“[T]he policies which [the development plan] sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. These considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle….policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.”

In some cases, the words in a policy may “speak for themselves”: see per Lord Reed at para 20. In such cases, their application to particular factual situations will often be a matter of judgment for the planning authority and only susceptible to review on the usual public law grounds. But in my view, this is not such a case. I do not consider that there is room for the exercise of planning judgment in determining the meaning of CS9(E). The exercise that the inspector undertook of assessing the character of the area was one that had already been undertaken through the CS process. It was not relevant to the meaning of the policy. The meaning of “generally” in CS9(E) is a hard-edged question of construction for the court to determine.

In my judgment, CS9(E) bears the meaning given by the judge for the reasons that he gave. It does not say that tall buildings are inappropriate throughout the borough. The last sentence makes this clear. It says that tall buildings are generally inappropriate and will not be supported. The scope of the exception to the general rule is set out in the last sentence. If it had been intended to say that there could be exceptions to the general rule throughout the borough, it would have been necessary to say so. Instead, by making express reference to the possibility of exceptions in the Bunhill and Clerkenwell area, CS9(E) makes it clear that, save in that area, the general rule is to be applied and tall buildings will not be supported. I do not accept that the word “generally” is surplusage. It emphasises that the rule is the general rule subject to the stated exceptions. But even if “generally” is surplusage, that is insufficient of itself to point to one interpretation rather than another. First, the policy should not be construed with the rigour that is applied to the interpretation of statutes which have been drafted by Parliamentary draftsmen and contracts which have been drafted by lawyers. Secondly, even in the context of statutes and contracts, arguments based on surplusage are rarely of much force: see Arbuthnot v Fagan [1995] CLC 1396, 1404 (per Hoffmann LJ) and Beaufort Developments (NI) Ltd v Gilbert Ash NI Ltd [1999] 1 AC 266, 274B (per Lord Hoffmann).

If there is any doubt as to the meaning of CS9(E), it is put to rest by para 3.1.5. In my view, section 17(5) of the 2004 Act has no application here. That is because, at best from Mr Elvin’s point of view, the meaning of CS9(E) is unclear. It does not conflict with para 3.1.5 of the supporting text. Section 17(5) does not preclude recourse to a provision such as para 3.1.5 to resolve any doubt as to the correct meaning of the policy. Para 3.1.5 is part of the Council’s Strategic policies. The language of the paragraph could not be clearer. It states that an evidence base assessment has been conducted to determine whether there are any locations for tall buildings in the borough and that it has concluded that there are no locations suitable for additional tall buildings outside the Bunhill and Clerkenwell area.

If it were necessary to do so, I would find further support for the judge’s interpretation in the evidence base assessment itself. I see no reason why this should not be used as an aid to the proper interpretation of CS9(E) in circumstances where it is specifically mentioned in the supporting text at para 3.1.5. I have set out the relevant passages at para 7 above. They are perhaps even more emphatic than para 3.1.5 itself.

For all these reasons, I would dismiss the appeal from the judge’s decision on the main issue. I should add that the inspector is not to be criticised for reaching the conclusion that he did. The arguments that were addressed in the court below and in this court were not addressed to him. The main issue before him as stated at para 13 (and resolved at para 22) was agreed by the parties to be the main issue in the case. There has been no criticism of the way in which he determined that issue.

There remains the question of whether the judge was right to quash the inspector’s decision. Mr Elvin submits that it is unrealistic to suppose that the inspector would have reached a different conclusion if he had decided that there was a breach of CS9(E) and gone on to consider whether other material considerations indicated that planning permission should nevertheless be granted. Mr Elvin says that the other material considerations militated in favour of the development. The inspector set out some of the other considerations at DL 23 to 26. These included that the tower would not be overbearing and would not result in any loss of amenity at any dwelling in the area; the overall scheme was a mixed use development thereby satisfying one of the core principles of the National Planning Policy Framework (“NPPF”); the scheme had “high sustainability credentials” which is another core principle of the NPPF; and the tower would not undermine the interest of a locally listed building or its contribution to the street scene on Hornsey Road. Mr Elvin submits that these other material considerations together with the high quality of the design strongly militated in favour of the grant of permission.

The judge said at para 47 that the exercise of weighing the non-conformity with the CS against other material considerations was a distinctly different exercise from that undertaken by the inspector. The judge was not prepared to assume that, if the exercise were carried out, the same outcome was inevitable. He was unwilling to exercise his discretion not to quash the decision.

In my judgment, this exercise of discretion is unimpeachable. Mr Elvin is unable to identify any error of principle on the part of the judge. For that reason alone, I would refuse to disturb the judge’s decision. In any event, I should add that in my view the judge was right to quash the inspector’s decision. The main issue before the inspector was whether the 25 storey tower would harm the character and appearance of the area surrounding the site. He did not carry out the necessary weighing of other material considerations against the serious breach of CS9(E) that the construction of a 25 storey building would entail. It is impossible for the court to predict with any degree of confidence what the result of such a weighing exercise would have been.

I would, therefore, dismiss the appeal. Subject to any further representations from counsel, I would remit the matter to the Secretary of State for reconsideration in the light of this judgment.

I agree.

I also agree.