Arsenal lose judicial review as Islington council and planning inspector argue that there was no error in decision making process and the correct approach was followed

Arsenal Football Club launched a High Court challenge over the number of concerts it can hold at its Emirates Stadium.

The club has been limited to holding three concerts per year but wanted to increased this number to six. Arsenal argued that a “clear error” had been made by a planning inspector while opponents to the club’s plans have expressed concern over noise levels and the effect of music fans on the surrounding area.

Islington council previously refused Arsenal’s request to double the number of concerts held at the Emirates Stadium. The council said it was concerned about how noise and disturbance might affect local residents and the impact of closed roads and local tube stations being exit-only.

Following the council’s rejection a planning inspector dismissed the club’s appeal in January, refusing he the application under section 73 of the 1990 Act to vary the conditions which Islington council. Furthermore, the inspector stated in his decision that the premiership club could not plead poverty if it could afford to buy German midfielder Mesut Ozil for £43m the previous summer.

Arsenal’s chief executive director, Ken Friar, argued that the club needed the additional revenue from concerts between the football seasons to compete with its footballing rivals.

The issue before the court was on 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”.

Applying for judicial review, Dan Kolinsky of Landmark Chambers, who is representing the football club, told Mr Justice Cranston that the inspector’s decision was legally flawed and should therefore not be allowed to stand.

Kolinksy argued that the inspector failed to apply the law correctly when he decided the proposal to double the number of concerts “did not accord with the development plan” for the stadium and that there was “a clear error on the face of the decision letter”.

Where to draw the line’

Jeremy Phillips is a barrister practising from Francis Taylor Building

“A planning inspector’s decision, on High Court challenge, will be liable to be quashed if he fails to take account some material consideration, or takes account of some consideration which is irrelevant to the application. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse. The burden of proof is on the challenger.

“While I have no knowledge of the detail of the case, the club is apparently suggesting that the inspector failed to apply the law correctly when he decided that the proposal to double the number of concerts ‘did not accord with the development plan’ for the stadium. Certainly, there was a duty to determine the application in accordance with the development plan, unless material considerations indicated otherwise. Addressing those claims it is likely that the court will look at what the inspector apparently thought the important planning issues were and decide whether it appears, from the way he dealt with them, that he must have misunderstood the relevant policies.

“Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters of planning judgement are within the exclusive province of the local planning authority, or the Secretary of State.

“From the facts of the case it appears that the main issue troubling the inspector may have been precisely where to draw the line, given other stadia and venues in the UK are able to hold more than three concerts a year, but that those involved with the Arsenal proposal accepted ‘that there should be some form of cut-off in the frequency of major concerts’.

“As regards the development plan, reference was made by the inspector to a number of development management policies from which he drew the inference ‘that where compliance cannot be demonstrated planning permission should be withheld’. Further, he seems to have found that as further music concerts fell into the category of ‘other similar uses’ and would cause unacceptable disturbance when they took place, there would be a conflict with the policy. The ‘use would give rise to noise nuisance’ and would therefore be contrary to the policy ‘concerned with healthy development.’ From this he apparently concluded that on its face ‘the proposal would not accord with the development plan’.

“It was, of course, then open to him to balance that non-compliance against the other material considerations to which he properly referred in his decision. These other material considerations included economic benefit and employment. However, his conclusion was that ‘the advantages associated with three extra concerts would be insufficient to outweigh the conflict with the development plan and the harm that would occur’.

“Whether or not this was a conclusion which was legally available to him on the evidence will be a matter for the High Court, before which the matter now falls to be considered.”

The decision

Arsenal lost its High Court challenge after the club’s case was rejected by Mr Justice Cranston, who ruled there had been no error of law and that, contrary to Kolinsky’s aguments, planning decisions should not be approached in an overly legalistic way but should be read as a whole, and in good faith. Mr Justice Cranston dismissed the club’s application section 288 of the Town and Country Planning Act 1990.

This news piece was first published in the Solicitors Journal on 29 July 2014 and is reproduced with kind permission.