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One-nil to the inspector - Arsenal lose appeal over planning conditions

Arsenal Football Club has lost a High Court challenge over a planning inspector’s decision to refuse to increase the number of music concerts the football club can hold at the Emirates Stadium from three to six.

The club had also been seeking to increase the number of major events that it could hold on a Sunday from one to three.

After a six-day inquiry, David Smith, the inspector, issued his decision letter in January 2014. He refused the club’s application under s. 73 of the 1990 Act to vary the conditions which Islington Council had attached to two previous planning permissions for the stadium.

In Arsenal Football Club Plc v Secretary of State for Communities And Local Government & Anor [2014] EWHC 2620 (Admin) Arsenal challenged that decision under s. 288 of the Town and Country Planning Act 1990.

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The claim was confined to a single ground – that Smith was in error under s. 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".

Mr Justice Cranston dismissed Arsenal’s claim. He said planning decisions “should not be approached in an overly legalistic way but should be read as a whole, and in good faith”.

The judge added: “If that is done it is clear to me that the inspector did properly address the question of whether the proposal was in accordance with the development plan.”

Mr Justice Cranston said:

  • There could be “no question that the inspector took into account all relevant planning policies constituting the development plan”. They were referred to in the parties' submissions, in the Statement of Common Ground and in the decision letter itself. “In particular the inspector summarised his conclusions on the application of each in paragraph”;
  • It was up to the inspector to resolve the tension between the different policies. “That he did,” the judge said and there was no error in Smith’s approach;
  • The inspector reached an assessment overall on the conformity of the proposal with the development plan as a whole.

A copy of the judgment can be viewed here.


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