Before : MR JUSTICE OUSELEY Between : MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON.

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1 Neutral Citation Number: [2012] EWHC 1716 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/3858/2011 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2012 Before : MR JUSTICE OUSELEY Between : MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON Claimant - and - (1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) SPIRITBOND FINSBURY PARK LIMITED (3) JOHN JONES LIMITED Defendants Mr Daniel Kolinsky (instructed by Solicitor to London Borough of Islington) for the Claimant Mr Christopher Katkowski QC (instructed by Osborne Clarke Solicitors) for the 2 nd and 3 rd Defendants The Secretary of State for Communities and Local Government did not appear Hearing dates: 18 th May Judgment Approved by the court for handing down

2 If this Judgment has been ed to you it is to be treated as read-only. You should send any suggested amendments as a separate Word document.

3 MR JUSTICE OUSELEY : 1. The London Borough of Islington, the Claimant, refused planning permission on 9 September 2010 for development comprising 15 dwellings, 5280m² of light industrial floorspace, to be used by John Jones Ltd for its frame-making business, 575 rooms of student accommodation and ancillary floorspace, 267m² of retail floorspace, 1000m² internal service yard and associated works. This refusal, against the recommendation of its officers, was for reasons of scale and massing, and the impact on trees. 2. John Jones Ltd, the Third Defendant and Spiritbond Finsbury Park Limited, the Second Defendant, appealed against that refusal. The appeal was dealt with at a hearing before a planning inspector on 15 February By the time of the hearing, the Council was objecting to the development because of the student accommodation, which it said was contrary to a Core Strategy policy which was about to be adopted. On 17 February, this policy was adopted, as part of the Local Development Framework and so became part of the Development Plan, as anticipated. The Inspector allowed the appeal in a Decision Letter dated 18 March The London Borough of Islington challenges the decision under section 288 of the Town and Country Planning Act 1990 first on grounds relating to the Development Plan: the Inspector failed to appreciate the significance of the adoption of the Core Strategy and that it was part of the Development Plan at the time of her decision, and had misinterpreted the policy. The second contention put forward by the London Borough of Islington was that the Inspector s conclusion that a viable redevelopment scheme could not be achieved by conventional housing was not based on any evidence as to the viability of any alternative redevelopment proposals. She had sought erroneously to protect the particular occupation of the land by John Jones Ltd, a point not much pressed before me, and had made an error of fact in describing John Jones Ltd as the second largest private employer in Islington. Her reasoning on viability was legally inadequate. 4. The Secretary of State consented to the Decision Letter being quashed but only on the ground that the Inspector had failed to recognise that the proposed development conflicted with the Development Plan. The successful Appellants, now Defendants, contended that the decision was not unlawful. The background 5. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires an application for planning permission to be determined in accordance with the [Development Plan] unless material considerations indicate otherwise. It is not in dispute but that the Development Plan referred to in section 38(6) is the Development Plan as it stands at the date of the grant of permission or of the decision on appeal, here 18 March Nor is it in dispute but that the Development Plan here as at that date included the recently adopted Core Strategy with its changed policy on student accommodation. 6. When planning permission was refused by the London Borough of Islington on grounds now of no consequence, its committee was told by officers that the draft Core Strategy was material but that it would be difficult to justify refusing planning permission solely by reference to such draft policies. The problematic balance in

4 Islington between student accommodation and conventional housing and employment uses was not referred to, though it was capable of being a material consideration albeit not yet supported by advanced policy. The then current Development Plan policy, in the London Plan, was generally supportive of student accommodation. 7. The Appellants Statement of Case in November 2010 prepared for the hearing, treated the principle of redevelopment and the mix of uses as agreed. In its contextual argument, it said that John Jones Ltd was a high quality picture-framing business which had operated in the Borough for over 30 years but which now needed larger, more modern and efficient premises. It currently employed 90 people, most of whom lived in the Borough. Accordingly, the company is the second largest private employer within the Borough and has a strong desire to retain its presence within the Borough. The redevelopment was designed to provide the necessary premises, which was the principal and dominant factor behind the redevelopment proposals. These would provide: the revenues to progress a programme of redevelopment and investment in their business in a scale and form that will not undermine the continued John Jones operation, aided by the compatibility of proposed uses. Importantly, John Jones will not proceed with development per se, consequently growth of the business will be stifled unless the appeal proposals are approved, and the important redevelopment and regeneration of Finsbury Park will be undermined. 8. The Statement of Case noted that the Council accepted that the company was generally recognised to be of local importance within the Borough. 9. The Council s written Statement of Case for the hearing, produced in December 2010, referred to the emerging Core Strategy CS, Policy 12.I of which restricted the provision of student accommodation outside two particular areas neither of which included the appeal site. The Council s statement continued: greater weight will be attached to this policy (should it be adopted) at the time of the informal hearing in February and in the circumstances, the Council may want to add to this statement before the informal hearing. 10. But it did not indicate how the policy might affect the development and what stance the Council would take on it. It concluded: it is noted that the appeal proposal would introduce student accommodation to this site and allow the retention of John Jones at this site with an increase in floorspace and all the added benefits in terms of regeneration and employment that this would generate. It also noted that the proposed building will provide a greater level of street activity than the existing building. However it will be argued that these benefits do not outweigh the harm identified..

5 11. The provision of student accommodation in a restricted area was not part of the harm identified. At that stage a development allowing John Jones Ltd to stay and modernise with student accommodation as part of the scheme was seen as a benefit but one not outweighed by the objections then relied on, namely scale, massing and trees. 12. The Council s Statement did not take issue with anything said by the Appellants about the scale or importance of John Jones Ltd, nor did it suggest that an effect of policy CS.12.I, if adopted, could be to require viability studies for a scheme comparing student accommodation and conventional housing to be produced at the appeal hearing. 13. In their December 2010 rebuttal statement the two defendants s planning consultant, Mr Anderson of Iceni Projects Limited, referred to the emerging Core Strategy 12. He pointed out that although the Core Strategy had been emerging for well over 2 years and it had been discussed, the London Borough of Islington had decided not to raise it as an objection when it was making its decision on the application. 14. By dated 4 February 2011, the London Borough of Islington alerted the Planning Inspectorate to changes in the status of its Core Strategy: the Inspector who held the Examination in Public, EIP, into the Core Strategy had recommended that the Core Strategy was sound; the officers would recommend the Council s Executive on 17 February 2011 to adopt the Core Strategy. The pointed out that, if that recommendation were accepted, from 18 February 2011 onwards the Core Strategy would be part of the Development Plan. The Council said it would argue at the hearing that the application should be refused on the basis of the Core Strategy Policy 12(1). The attached the EIP report and the Core Strategy policies. 15. At the outset of the hearing the Inspector produced an agenda which put the policy framework, including the Local Development Framework of which the adopted Core Strategy would form part, as the second item for discussion. Issue 1, the second item, was whether the site was appropriate for the provision of student accommodation considering: (a) core strategy policy 12 (b) (c) location of appeal site in relation to identified university sites need for student accommodation. 16. On 22 February 2011, after the hearing but before the Decision Letter was issued, the London Borough of Islington ed the Planning Inspectorate to say that, as anticipated, the Core Strategy had been formally adopted on 17 February The Core Strategy 17. Adopted Policy CS2 dealt with the Finsbury Park area where the appeal site is. It provides in B:

6 Redevelopment of low density employment sites around Finsbury Park Station is supported to provide mixed-use developments of housing, employment (office, light industrial, storage and distribution), retail and leisure. Loss of some storage and distribution floorspace on these sites may be acceptable if re-provided by intensified use of surrounding sites. These sites will provide between units of housing. Self-contained conventional housing and employment uses will take priority over other uses above ground floor in this area. 18. The Second and Third Defendants drew support from the Development Plan from that first sentence. 19. Paragraph of the Core Strategy recognised that student accommodation contributed to prosperity in London but said that the recent huge increase in its provision and potential over-concentration could threaten the achievement of a more balanced and stable population. Targets for student accommodation had been exceeded many times over in recent years to the point at which action was required to ensure a balanced approach between student accommodation and its impact. In addition, land for housing and employment uses in Islington is in very short supply making delivering these two uses the council s absolute priority. 20. Core Strategy 12 meeting the housing challenge included 12.I which dealt with student accommodation: Consistent with Policies 4 and 7, the provision of additional student accommodation will be supported only within the identified London Metropolitan University campus area and specific City University London sites. These will be designated or allocated in the Site Specific Allocations and Bunhill & Clerkenwell Area Action Plan. Elsewhere, student accommodation will be restricted to reflect the priority need for conventional homes and employment uses. The impact student accommodation has on local infrastructure including open space and transport will be taken into account when assessing applications. 21. Policies 4 and 7 concern the preferred zones for student accommodation which are the ones which the Inspector s agenda refers to as the identified university sites. The appeal site is outside those two areas. The Decision Letter 22. The Decision Letter identified as the first main issue, in the manner foreshadowed by the agenda and agreed to be correct, whether the site is appropriate for the provision of student accommodation. Under the heading student accommodation, the Inspector said: The driver for the redevelopment of the site is the provision of the new accommodation for John Jones which is essential if the

7 business is to continue to grow and further enhance its reputation. The company employs about 90 local people, is the second largest private employer in Islington and I am convinced as to the importance of retaining it in the Borough. The rationale behind the proposals is to increase the overall density of building, developing part of the site to fund the new premises on the remainder. Work on preparing a suitable scheme has taken place over several years and various options have been explored including relocation of the firm and alternative mixes of uses. Conventional housing or employment uses on the site would be restricted by Development Plan policies, governing such matters as open space and noise, and would not otherwise result in a viable scheme. 23. In paragraph 6 the Inspector referred to the 2002 UDP which identified Finsbury Park as a priority area for regeneration. In paragraphs 7-9, the Inspector turned to the Core Strategy. She saw this with other initiatives as encouraging regeneration: 7. The Inspector s report into the examination of the Core Strategy (CS) had recently been received. With regard to Finsbury Park the overall thrust of the CS is to promote regeneration noting in particular that there are a number of employment sites adjacent to the station which are under utilised and contribute to the area s unattractiveness and lack of a sense of place. According to the CS such sites, and in my view the appeal site is a prime example, offer the greatest opportunity to regenerate the area. On the CS Key Diagram the site is within a development area for housing, retail, leisure and employment and also part of an area of improvement to the public realm. The policy for Finsbury Park, CS 2, supports the redevelopment of low density employment sites around the station to provide mixed-use developments with conventional housing and employment uses taking priority over other uses above ground floor level. 8. CS Policy 12.I, which has been strengthened since the submission version, is unambiguous in restricting the development of student accommodation to two identified areas associated with London Metropolitan University and City University London, neither of which includes the appeal site. The CS was due to be adopted a few days after the Hearing took place and I must, therefore, attach significant weight to it. Nevertheless, it is my view that the more effective and efficient use of the site, the retention of a valuable local business and the regeneration benefits arising from the scheme are matters of such importance, and generally in compliance with the overall strategy for Finsbury Park, as to outweigh the restrictive nature of Policy CS12.I. I therefore find that, taking account of the details of, and circumstances surrounding, the proposed

8 24. She then said : development, the site is appropriate for student accommodation. The provision in the unilateral undertaking for the developer or owner to make bursaries to a number of local students every year would be in line with Policy CS 12.I. 9. In coming to this view I have taken account of the arrangement for the University of Arts to take up the student accommodation which would not, therefore, be built speculatively a modest amount of conventional housing would be included in the scheme, all of it affordable, rented accommodation which would be secured through the unilateral undertaking and would help to meet housing need in the borough. 25. In her overall conclusions in paragraph 35, the Inspector said: In incorporating not only the new workshop and student accommodation but also a sufficient service area, amenity open space, affordable housing and a shop the proposed scheme has been well planned to make the best use of a site in a highly accessible location. The provision of all its constituent elements naturally results in a high density development consistent with the Core Strategy. The retention and expansion of a prominent local business and employer is a significant benefit which, together with the regenerating effect, the scheme will have, justifies the provision of student accommodation and the reduction of light in some neighbouring dwellings. The Claimant s submissions 26. Mr Kolinsky for the Council submitted that the Inspector had failed to appreciate either that Policy CS12.I had become part of the adopted plan by the date of the decision, or the significance of it being so, or perhaps had treated Development Plan status as fixed by the position at the hearing. He highlighted the first sentence of paragraph 7 and the second sentence of paragraph 8 of the Decision Letter, together with a failure by the Inspector to cast her decision in terms of whether the development accorded or otherwise with the Development Plan. 27. He then submitted that, on the proper interpretation of CS12, the development did not accord with it because it was outside the two identified locations where student accommodation would be supported and in an area where it would be restricted. The student accommodation was a major component of the scheme. In concluding that the site was appropriate for student accommodation, as opposed to being a breach of Core Strategy 12.I the Inspector had misinterpreted the Development Plan. This was the aspect of Ground 1 on which the Secretary of State had conceded an error of law. 28. Finally on Ground 1, the Inspector had failed to consider the purpose of CS.12 summarised above and in the Core Strategy EIP Inspector s report sent to the

9 Inspector: the supply of student accommodation needed restrictive management because of the priority accorded to conventional housing and employment uses on sites in Islington for which there was intense competition. Once the Core Strategy was adopted as part of the Development Plan, not merely did the framework for decision-making change, with the need to decide whether development was in accordance with or in breach of the plan including the Core Strategy, but the weight given to individual factors restricting development increased and correspondingly the more significant would have to be the other material considerations which could justify a decision not in accordance with the Development Plan. The internal balance within the policy would change and not just the weight given to the policy. 29. As was eventually accepted by Mr Kolinsky before me, Ground 2 cannot realistically be separated from Ground 1 because the relevant considerations and the Defendant s answer to each naturally run into each other. Mr Kolinsky submitted that there was no evidence upon which the Inspector could reasonably have concluded that no alternative redevelopment proposals including conventional housing on the site would be viable. There were no more than very broad and general assertions about viability and no evidence to show that only student accommodation could enable John Jones Ltd to stay and modernise its business on the site. 30. The Inspector had given no legally adequate reasons for her conclusion on viability, prejudicing the Council in the application of its policy because it would be open to anyone on equally slender evidence to argue that conventional housing was not viable outside the preferred student accommodation areas, even on a large site where employment uses occupied a relatively small proportion of it. 31. The Inspector had wrongly sought to protect John Jones Ltd as a business occupier at the particular site rather than evaluating the uses by reference to the Development Plan; indeed the Inspector had erred in treating John Jones Ltd as the second largest private employer in Islington. The Defendants submissions 32. Mr Katkowski QC, for the Second and Third Defendants submitted that it was not conceivable that the Inspector had failed to appreciate the significance of the Development Plan or that by the time of her decision Policy CS12 had become part of it. He relied on City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR 1447 HoL, as showing, at page 1460 (d)-(f) in the speech of Lord Clyde, that the then Scottish equivalent of section 36 of the TCPA 1990 (now s38 of the 2004 Act) did not require an Inspector to use any particular expression in dealing with the Development Plan: in that case the Inspector s decision was held not to be unlawful despite using language similar to that criticised here: recent legislation [the equivalent of section 38] enhances the status of the Development Plan, I believe in this case it is appropriate to attach greater weight to other material considerations. 33. However, the Inspector s approach to the significance, meaning and application of CS12 could not be understood in isolation from her reasoning on the lack of viability of the scheme if there were conventional housing rather than student accommodation. If the Inspector s conclusions in paragraph 5 of her Decision Letter were right, that conventional housing or employment uses on the site would not lead to a viable scheme, then it was open to the Inspector to conclude that the retention of a valuable

10 local business, as she described John Jones Ltd in paragraph 6 of her letter, would outweigh the restrictive policy in CS12.I. Mr Katkowski submitted that the proper interpretation of CS12 would mean that student accommodation in areas where it would be restricted would be in breach of CS12, as the Secretary of State concluded. Both parties were agreed that, following Tesco Stores Limited v Dundee City Council [2012] UKSC 13 the interpretation of the Development Plan was for the Court rather than for the reasonable judgment of the decision-maker. 34. Mr Katkowski then pointed to the significance of the evidence about what had happened at the hearing. The London Borough of Islington had been well aware of the nature of the case being made by the Appellants. At no stage before the prehearing s had it sought to raise any specific point about student accommodation being an objectionable part of the mix, aware as it was that the emerging policy was looking to restrict its provision outside two specific areas. The Council had always realised that the Appellants case was that John Jones Ltd needed enabling development to stay on site and modernise. The Appellants witnesses had given evidence to that effect about which they had not been questioned. Mr Anderson s witness statement said that John Jones Ltd had made it clear at the outset of the Hearing that without student accommodation and the financial investment this would provide, they would not be able to grow the business at the pace needed to compete within the marketplace and Finsbury Park would be denied the opportunity of a major regeneration proposal. 35. Both Appellants gave evidence to the Inspector on viability: John Jones Ltd had explored a variety of development options but interest from house builders had depended on John Jones Ltd and a butcher, whose premises were adjacent to the appeal site, leaving their existing premises. John Jones Ltd s property consultants had searched unsuccessfully for a suitable relocation site which it could afford, and the butcher did not want to relocate anyway. That meant that the necessary financial enabling development had to be compatible with the employment uses remaining on site and also had to meet the Council s concerns over the proximity of residential and employment uses. 36. Those difficulties had been raised by the Council in pre-application discussions; Mr Anderson identified eight areas of difficulty, including dual aspect, amenity space, hours and noise of operation which, according to his firm s notes of the Hearing, he had said would so restrict the operation of the business that the acceptable limited number of conventional houses and flats would be so small as to make a development permitting the modernisation of John Jones Ltd unviable. The nature of student accommodation made it considerably easier to design a high density development alongside the existing businesses. John Jones Ltd also could not countenance a development which risked creating objections to its business operations from new residential occupiers. It was only a student accommodation-led mixed use development which would be viable. He confirmed to the Council s witness at the Hearing that the student accommodation was enabling development, as he said had also been made clear in pre-application discussions and in his Statement of Case for the Hearing. The Council s witness said she was not aware of any financial information being submitted in the application process but asked no further questions and did not pursue the matter further.

11 37. The Inspector however did pursue it further on the issue of design compatibility of the residential and business uses; Mr Anderson told her that it was his experience that the design and occupational constraints would limit the capacity of the site for conventional housing. 38. Although the witness statement of Miss Knipe, one of the Council s witnesses at the Hearing, purports to take issue with Mr Anderson s evidence, it does so more by reference to his commentary on the nature of the Council s objection, a commentary irrelevant to my task, than by reference to what he says about how the discussion actually went at the Hearing. She says that once it had been established that no financial information was available for a comparative analysis of conventional housing and student accommodation, her recollection was that the Hearing was simply not in a position to draw any conclusion one way or another about the relative viability of a student housing scheme compared with a conventional housing scheme. But she does not even say that she made a comment or argument to that effect. Her evidence to this Court was simply a comment on the effect of the evidence that had been provided. 39. The agreed Statement of Common Ground said that policies Core Strategy 2 and 12 were highly likely to have Development Plan status from 17 February 2011 onwards, and that John Jones Ltd was the largest picture framing business of its kind in Islington, well known throughout London and was an employer of local residents. It employed 90 people. The principle of a mixed use development was accepted and would assist the vitality of Finsbury Park Town Centre and have a regenerative impact on the surrounding area. 40. Mr Katkowski contended that the Inspector had concluded, as was obvious, that the student accommodation which was a large component of the proposal did not accord with Policy CS12.I because the appeal site lay outside the preferred areas and so was inside the areas to which the restrictions applied. Her conclusion that the appeal site was appropriate for student accommodation was an overall conclusion after taking into account all material considerations which she clearly treated as outweighing the thrust of Policy CS12.I. It was obvious that the Inspector would have treated the Core Strategy as part of the Development Plan by the time of her decision, in the light of what she said about it and had been told by the Council at the Hearing. The Inspector was not obliged to discuss the purpose which lay behind CS12.I. 41. As to Ground 2, on the evidence which the Inspector had heard on the viability of the scheme, she was entitled to conclude that a scheme providing essential new accommodation for John Jones Ltd would only be viable with student accommodation. This issue did not have to be addressed in any particular manner. The Defendants now accepted that their evidence, that John Jones Ltd was the second largest private employer in Islington was wrong, though unchallenged at the Hearing. It was clear that the Inspector would have reached the same decision even if the correct position had been known. Her reasons were legally adequate. Conclusions 42. In my judgment, each ground is interrelated and a clear understanding of the Decision Letter is necessary in order to reach a conclusion on them. Logically Ground 2 which concerns the Inspector s conclusion on the viability of the scheme without student

12 accommodation comes first. It is her conclusion on that topic which she sensibly deals with at the outset, which feeds into and is crucial to her treatment of CS12. Her reasoning cannot fairly be understood without approaching her decision in that way. 43. I am surprised that the Secretary of State conceded that the Inspector had failed to recognise that the development conflicted with CS12, part of the Development Plan, whilst apparently accepting that her conclusions on the viability of the scheme were lawful since it is the latter which, rightly, dictates her approach to CS12 and enables it to be understood. Indeed, the Secretary of State s partial concession seems to me to be neither logical nor based on a proper understanding of the Inspector s reasoning. 44. The Inspector concluded in paragraph 5 of her Decision Letter that John Jones Ltd was an important employer who should be kept in Islington, for whom new accommodation was essential if it were to thrive. The rationale for the development was for the development of part of the site, i.e. the student accommodation to fund the new premises on site for John Jones Ltd. Alternatives had been explored without success. Conventional housing or employment uses, the Council s preferred uses, would not result in a viable scheme. I emphasise viable scheme : it is a question of the viability of a scheme providing for modernised facilities for John Jones Ltd on site financed by other developments; it is not the viability of a simple conventional housing scheme on site, without mixed uses or other development which the residential accommodation had to fund. It is against that conclusion, and the undisputed regeneration benefits which the scheme would bring as a whole, that the Inspector appraised the effect of Policy CS12.I. She recognised that the locational thrust of CS12.I, a policy to which she gives significant weight, is against student accommodation, but the more effective and efficient use of the site and (in the light of her viability conclusions), the retention of a valuable local business and the regeneration benefits which generally complied with the Finsbury Park strategy were such as to outweigh the restrictive nature of Policy CS12.I. Therefore, in all the circumstances including the proposed development, she concluded that the site was appropriate for student accommodation; that is, appropriate because of all the circumstances including achieving the retention and growth in Islington of John Jones Ltd. 45. The Inspector says as much perhaps more clearly, in paragraph 35 of the Decision Letter: the benefit of retaining a prominent local business and employer and the regeneration effect of the scheme justifies student accommodation and the other drawbacks which the scheme presented. In other words, the overall advantage of the scheme and the local business employment and regeneration outweighed the restrictions in Policy CS12.I. On its face, the Inspector accepted that CS12.I required other material considerations to outweigh its restrictive thrust, and found that they existed. 46. The Council too had accepted that there were benefits from the mixed use scheme, but now thought them to be outweighed by the restrictive thrust of CS12, and the other drawbacks. Having reached the conclusions she did on viability, the Inspector reached a different view on that balance. 47. Crucial to this, on its face entirely lawful approach, is the Inspector s judgment as to the viability of the scheme with conventional housing. I reject the Claimant s submissions on this aspect. The Inspector had to reach a decision on the evidence

13 before her. The Appellants evidence covered the undisputed employment advantage of the retention and growth in Islington of John Jones Ltd, its unsuccessful search for alternative premises, the adverse reaction of house builders to a mix on site of John Jones Ltd and the butcher s use with conventional housing, the planning restrictions identified by the Council for such a mix of uses and the legitimate concern of John Jones Ltd that conventional residential accommodation on a greater scale than proposed could threaten the hours and noise levels of its operation, jeopardising its continued existence on site. The Inspector was entitled to conclude that John Jones Ltd s retention and protection needed enabling development on site and that that would only be provided by student accommodation and not conventional housing. 48. The Claimant had had ample notice that this was the nature of the Appellants case and that that would continue to be their justification for development which did not accord with the emerging and then adopted Core Strategy Policy CS12.I. The Claimant initially raised no objection based on that emerging policy. When it did raise an objection based upon that nearly adopted policy, it did not suggest that any particular form of evidence would now require to be provided or investigated. At the Hearing, the Council pointed out that no financial evidence had been provided but left the debate at that. Ms Knipe merely says now that the Council could take the issue no further. She does not suggest that she made submissions to the Inspector to that effect or that it was suggested that that evidence was inadequate. 49. The submission that the Inspector had no evidence on which to base her viability conclusions is simply wrong. It mischaracterises as an absence of evidence what is no more than a criticism of the quality of the evidence, scarcely pursued in front of her, and wrongly suggests that only a comparative financial study could constitute evidence of viability. The evidence to support a conclusion of the nature reached here can be of many forms. The extent of the evidence challenging the conclusions is also relevant. There was none, not even saying that the planning restrictions identified as inhibiting conventional housing were not restrictions at all. 50. The Inspector made an error, caused by the Appellants evidence but not corrected by the Claimant, in stating that John Jones Ltd was the second largest private employer in Islington. It is smaller than many other private employers in fact. The parties treated this as an error by the Inspector who took it into account therefore as an irrelevant consideration. I am not sure that that is the correct analysis of a common error of fact in a jurisdiction based on error of law; see R (E) v SSHD [2004] EWCA Civ 49. However, I am entirely clear that nothing significant turned on precisely how large John Jones Ltd was in the hierarchy of private sector employers; what concerned the Inspector and is reflected in all her reasoning is that John Jones Ltd is a significant employer of Islington residents in a specialist manufacturing business, well regarded in London and the largest of its type in the Borough, and a business which the Council itself was keen should be retained, since its retention and growth plainly assists the planning objective of the regeneration of Finsbury Park. The error is of no consequence; I am entirely satisfied that the Inspector s decision would not have been changed in any respect. I do not accept that undue weight was given to the protection of John Jones Ltd. The protection of an important local employer and business is obviously a material consideration; weight is for the Inspector. 51. I am also satisfied that the Inspector s reasoning is legally adequate. I reject the notion that the London Borough of Islington does not know how CS12.I would be

14 applied in future, or whether this decision will mean that an important policy is readily sidestepped by viability arguments. This fear stems from its own misreading of the Inspector s decision. First, the Inspector dealt with a scheme enabling development to fund the retention of an important business on its specific site; she did not deal with whether every large site or mixed site would be viable for conventional housing. Second, it is always open to the Council to provide better evidence, or to require better evidence in the course of application discussions, or to refuse permission and argue about the adequacy of evidence. It does not always have to respond in the belated and limited manner as it did here. Third, the Inspector recognised and applied the restrictions in CS12.I but found that the site specific circumstances, along with the regeneration policy considerations in CS2 outweighed its restrictive nature. Paragraph 35 of the Decision Letter is an accurate summary of the Inspector s reasoning, adequately elaborated earlier in the Decision Letter. 52. I now turn to Ground 1 in the light of those observations. It is plain that the Inspector has not misinterpreted Policy CS12.I. It is not difficult to interpret: there are two preferred areas and the rest of the Borough is a restricted area; this site is in the restricted area. That she understood. She applied accordingly a restrictive approach: there had to be circumstances which outweighed the restriction or which justified development which did not accord with the restrictions. That is what a restriction means; it is not and could not be a bar to student accommodation in all circumstances. It is clear she understood that policy. She does not refer in so many terms to whether the development did or did not accord with the Development Plan as a whole or with CS12.I in particular, nor whether material considerations indicated a decision which was not in accordance with the Development Plan. It is obvious, from the justification she found to outweigh restrictions in CS12 that she found the development not to accord with CS12, but that material considerations indicated a decision which did not accord with CS I enter this note of reservation. The question is not simply whether a proposed development complies with the particular policy, here CS12.I. The Development Plan included CS2 which favoured regenerative development in Finsbury Park, which this development indeed was concluded to be. These policies need to be seen as a whole rather than individually since the statutory question in section 38(6) requires a judgment as to whether proposed development accords with the Development Plan, not whether it accords with individual policies, a number of which may pull in a variety of differing directions when applied to a particular proposal. However, taking CS12.I by itself, it is right to say that the proposal did not accord with CS12.I if it did not meet the locational thrust. 54. I do not accept that the Inspector treated the Core Strategy as not yet being part of the Development Plan at the time of her decision and accordingly gave it less weight than she should have done. It seems wholly improbable that she would have ignored the undisputed evidence that the Core Strategy would be presented to the Council on 17 February 2011 with a recommendation for adoption, leading to the obvious consequence that it would then be part of the Development Plan before her decision was issued. I do not think it right to infer that she made so obvious an error as to treat the status of the Development Plan as being fixed as at the date of the Hearing. No one at the Hearing either had suggested that that should be the case. Giving the Development Plan significant weight is language which could but does not

15 necessarily indicate a misunderstanding of its status. I accept Mr Katkowski s submission that the law does not require some particular formula to be used. 55. The question is what does the substance of the Decision Letter show? In my judgment the Inspector treated the Core Strategy as part of the Development Plan. She does not say she is giving it significant weight but nonetheless giving it less weight than she otherwise would because it is not yet part of the Development Plan, or that she is giving weight to other policies instead. The Decision Letter follows the terms of the agenda and the main issues set out at the start of the Letter. No one objected to the terms of the agenda and before me Mr Kolinsky accepted it as correct, along with her formulation of the main issues. Neither of those is expressed in terms which specifically refers to the Development Plan or weight to be given to it or whether development accords with it; see also the Council s own language at paragraph 9 above. In my judgment, the Decision Letter refers to giving it significant weight because it is the new policy which changes the framework for debate and puts the appropriateness of student accommodation at the top of the agenda. Her language in dealing with the main issue is cast in terms of the Core Strategy policies. The Decision Letter treats student accommodation, that is the effect of Policy CS12.I, as the first main issue. Student accommodation is necessary for the development to be viable, CS2 shows this to be an area for regeneration, albeit not with student accommodation and CS12.I is clear that this is an area in which student accommodation is restricted. 56. However, even if Mr Kolinsky were correct that the Inspector had made an improbable error about the status of the Development Plan, I am satisfied that it could not have altered her decision. First, the Development Plan was only a few days and here a short simple step away from adoption, so the difference in weight could not have been much. Second, she did not give greater weight to any other policy and other considerations but applied Policy CS12.I according to its terms. Her decision was made within the framework of CS12.I. Conventional housing would mean the development scheme for John Jones Ltd would not be viable and so significant employment would be put at risk. So the purpose of the restriction, which was largely here to give priority to conventional housing, could not be achieved within the purpose of the redevelopment proposed. So the issue was: should the development, proposed for the regeneration and its other benefits, be refused because of the policy objection. Whether CS12.1 was adopted policy or not, the answer here would still be the same, i.e. that it should not. 57. The effect of adopting the policies of Development Plan is not to alter the meaning of the words of the policy but to affect their significance in the decision-making process, their role in the framework for decision. This obviously includes the weight to be given to the policy. I accept that, until that point, it may be legitimate, without altering the interpretation of the words, to give greater weight to other material considerations than, say, to the locational thrust of the policy, than would be the case after adoption. After adoption the other material considerations, which may include other policies, can still however outweigh the directional thrust of a policy. But that is the consequence of the overall decision-making, and such an outcome cannot be taken to be the assessment of the effect of a policy taken by itself. I do not see in the substance of her decision, so as to support the Claimant s submissions, any real sign

16 that she was giving less weight to the restriction in CS12 and greater weight to other material considerations than would be appropriate for an adopted policy. 58. Accordingly, I dismiss this application.