Arsenal Football Club Plc v Secretary of State for Communities and Local Government (First Defendant) Islington London Borough Council (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2620 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2014 |
| Docket Number | Case No: CO/835/2014 |
[2014] EWHC 2620 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: CO/835/2014
and
Daniel Kolinsky (instructed by Arsenal FC General Counsel) for the Claimant
Richard Honey (instructed by Treasury Solicitor) for the First Defendant
Robert Walton (instructed by London Borough of Islington) for the Second Defendant
Hearing date: 22 July 2014
Introduction
This is a challenge by the claimant, Arsenal Football Club Ltd ("the club"), under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to a decision of David Smith, the Secretary of State's Planning Inspector, contained in a decision letter of 16 January 2014. After a 6 day inquiry Mr Smith refused the club's application under section 73 of the 1990 Act to vary the conditions which Islington London Borough Council ("the council" or "Islington") had attached to two previous planning permissions for the Emirates Stadium. The application was 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.
The claim before me is confined to the single ground that the Inspector was in error under section 38(6) of the Planning and Compulsory Purchase Act 2004 in addressing whether the club's application complied with the development plan for the area. Section 38(6) provides that the determination of a planning application "must be made in accordance with the [development] plan unless material considerations indicate otherwise".
Development plan
The relevant development plan for Islington at the time of the decision consisted of the Islington Core Strategy (adopted 2011); Islington's Development Management Policies (adopted 2013); and the London Plan (adopted 2011).
Policy CS14 of the Islington Core Strategy supports retail and shops for economic development and the enhancement of existing cultural uses. It reads, in part:
"Retail and services
A. Islington will continue to have strong cultural and community provision with a healthy retail and service economy providing a good range of goods and services for the people who live, work and study in the borough. This will both support the borough's economic development and enable people to shop locally. The council will protect and enhance the existing arts and cultural uses and encourage new arts and cultural uses, particularly within town centres."
Islington's Development Management Policies provide for the location of entertainment activities. DM4.2 states that entertainment and night-time activities are generally inappropriate outside town centres, but where proposed outside town centres applicants will need to demonstrate that such uses will not result in adverse impacts, including cumulative impacts, as assessed in relation to policy DM4.3, and are consistent with other policies relating to development outside town centres. The supporting text to the policy refers to entertainment and night-time uses including cinemas, theatres, restaurants, public houses and other similar uses. Such uses, it explains, "can result in adverse effects on surrounding neighbourhoods, with adverse amenity effects generated from factors such as noise and anti-social behaviour, particularly late at night". The supporting text adds that applications for entertainment and night-time uses outside town centres will need to demonstrate that the proposed use will not result in adverse impacts, particularly on residential amenities.
Policy DM4.3, on the location and concentration of uses, states that proposals for cafes, restaurants, drinking establishments, off licences, hot food takeaways, lap dancing clubs, nightclubs, casinos, betting shops, amusement centres and other similar uses will be resisted where they would cause unacceptable disturbance or would detrimentally affect the amenity, character and function of an area.
There is support for local public houses in Development Management Policy DM4.10.
Regarding noise nuisance DM6.1, "healthy development", states:
"Noise sensitive developments should be adequately separated from major sources of noise, such as road, rail and certain types of development. 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 supporting text to DM6.1 explains that where potentially noisy developments, such as entertainment venues, industrial uses and construction, are proposed within residential areas, the council will expect the use not to give rise to noise nuisance.
Within the strategic part of the London Plan, Policy 4.6 states that the Mayor will support and the boroughs and other stakeholders should support "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." It goes on to provide for how planning decisions should do this and how local councils should act in preparing local development frameworks.
Claimant's application and planning inquiry
Among the conditions attached to the planning permissions granted for the Emirates Stadium before it was opened were conditions AG20 and AG27. AG20 states that, for the 3 music concerts permitted, amplified sound from concerts within the stadium must be controlled in accordance with the guidance provided by the Code of Practice on Environmental Noise Control at Concerts, 1995 ("the COP"), such that music levels do not exceed 75 dbl, 1 metre from the façade of any noise sensitive premises. Condition AG27 states:
"There shall be no more than 6 non-association football single day major events (of which a maximum of 3 could be music concerts events) in any 12 month period of which total not more than one shall be on a Sunday and not more than one on a Bank Holiday."
In February 2013 the club applied to vary those conditions. The council refused the application by notice dated 23 July 2013. It stated that the proposed changes to the condition AG27 to allow an increase in the number of non-association football single day major events from 6 to 9, and the distribution of events to include a greater number of Sundays, along with the increased sound levels potentially allowed by changes to condition AG20, "would cause unacceptable harm to the amenity and functioning of the local area to the detriment of Islington's residents". The notice added that the proposals would be contrary to policies DM 4.2, DM4.3 and DM6.1 of Islington's Development Management Policies.
The club appealed against the council's decision to the Secretary of State, who appointed an inspector to consider the matter. Among the evidence which the club submitted in support of the appeal was that of Roger Hepher, a town planner. He dealt with planning issues in part 5 of his written proof of evidence. He stated that the development plan was the starting point for the inspector and referred to the London Plan, Policy 4.6 and Core Strategy CS14. In his opinion the proposal was consistent with these polices. In considering DM4.2, DM4.3 and DM4.6, Mr Hepher's evidence was that these were not infringed. Overall, there was a very strong degree of compliance with the development plan insofar as it addressed the circumstances of the appeal. Referring to specific evidence on noise levels Mr Hepher concluded that, coupled with the infrequent use, it was difficult to conclude that what was proposed would have significant adverse effects on amenity under DM4.2 or create unacceptable disturbance under DM4.3.
Islington's evidence before the Inspector referred to the major adverse impacts of the proposal with noise, the impact on the transport network and the cleaning and dismantling. These had to be considered within the context of policy DM4.2. There was also reference to Core Strategy CS14 and the London Plan, regarding the success of London's diverse range of art, cultural, professional sporting and cultural enterprises.
At a pre-inquiry meeting on 3 October 2013, the inspector recorded that the main planning issue, on his initial view, related to the impact on the living conditions of nearby residents and the general amenity and functioning of the borough and, if any harm arose, whether that would be outweighed by other material considerations including economic and other benefits.
In a statement of common ground in November 2013, the claimant and the council set out as follows the list of the planning policies and guidance documents of relevance to the issues to be considered at the inquiry: "Development Plan: London Plan (2011), Core Strategy (2011), Development Management Policies (2013), in particular those policies listed in the reason for refusal, as set out below: Development Management Policy DM4.2 (Entertainment and the night-time economy); Development Management Policy DM4.3 (Location and concentration of use); and Development Management Policy DM6.1 (Healthy development)." The statement then proceeded with a discussion of the agreed principles under these headings: transport, noise and "other". The latter contained eight sub-headings, including...
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