Business matters

Caroline Bywater analyses a planning case in the High Court that examined the protection of local businesses as a material consideration.

An interesting case came before the High Court in June, highlighting the (not quite) age-old question of the interplay between development plan policies and material considerations which could outweigh them in the determination of a planning application (pursuant to s38(6) PCPA 2004).

The case of Islington London Borough Council v (1) Secretary of State for Communities & Local Government (2) Spiritbond Finsbury Park Ltd (3) John Jones Ltd (2012) [2012] EWCH 1716 (Admin) referred to a proposed development, in Islington, of some light industrial floorspace to allow the expansion of an established local business, together with 15 dwellings, and some 575 rooms of student accommodation. It was agreed by the parties that the business was a significant employer of local residents and was one which the Council was itself keen to retain in the Borough.

At the time of the hearing into the appeal against the Council's refusal of consent, the Council's Core Strategy was yet to be adopted, but this was anticipated to be done (and in fact was done) just two days later - therefore consideration of it was a significant part of the appeal hearing and by the time the Inspector made her decision the policies were fully adopted. As it is the development plan which is in place at the time of making the decision which should be taken into account, the Inspector was right to refer to that in her report.

There were clear policies in the Core Strategy which promoted 'conventional homes and employment use', but expressly did not support student housing, save in two defined areas (and this was not one of them), on the basis that the Borough had been exceeding its student accommodation targets for some time. However, the decision maker of course has to consider all other material considerations and decide what weight to attach to them.

The Court found here that the protection of the important local business and employer was such a consideration. It had been shown at the appeal hearing (although the evidence was in question in the High Court challenge) that the employment development would not have been viable without the student accommodation. The Inspector had noted that alternative proposals, including the provision of conventional housing, had been explored.

The Court concluded that the Inspector had been entitled to find that the overall advantage of the proposed development to the local business and the regeneration of the area outweighed the policy restrictions in the development plan, when read as a whole.

Caroline Bywater is a Senior Solicitor at Mills & Reeve. She can be contacted on 01223 222365 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the firm's planning law blog.