Council of the City of Newcastle upon Tyne v Secretary of State for Levelling Up, Housing and Communities

In a statutory challenge to a planning appeal decision, the court reviews legality rather than the planning merits. A decision-maker may treat the deliverability of a development as a material planning consideration where it is relevant to the proposal’s planning merits, including overcoming longstanding regeneration difficulties. But the possibility that alternative designs cannot reduce harm to a heritage asset is relevant to the planning balance, not to measuring the level of harm caused by the scheme under the National Planning Policy Framework. Reasons must enable the reader to understand how the principal controversial issue was resolved. Where an error may have affected the assessed level of heritage harm and the planning balance, relief cannot be refused unless the outcome would inevitably have been the same.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of permission for a residential-led development on Plot 12, East Quayside, Newcastle.

The Inspector found less than substantial harm to the setting of the Grade I listed St Ann’s Church, treated the harm as towards the lower end of that category, and concluded that public benefits outweighed the harm. She also treated the development’s deliverability, including its public ownership and funding, as attracting substantial weight. The claimant challenged those conclusions and the Inspector’s assessment of living standards for future occupants.

1. Statutory review. The court’s function was confined to deciding whether the Inspector’s decision contained an error of law. The decision letter had to be read fairly and as a whole, in a straightforward manner, with reasonable benevolence and without excessive legalism.
2. Heritage harm. Paragraph 195 of the National Planning Policy Framework concerns avoiding or minimising conflict between development and heritage conservation. The assessment of the level of harm caused by the particular proposal is a separate exercise undertaken to apply paragraph 202 or paragraphs 200 and 201. The availability or non-availability of an alternative design may affect the balance between harm and benefit, but it does not determine how much harm the proposed scheme itself causes.
3. The Inspector’s conclusion that the harm to St Ann’s Church was towards the lower end of less than substantial harm relied on the site constraints and therefore on her earlier conclusion that alternative designs could not reduce the harm. That was legally irrelevant to the assessment of the level of harm. The reasoning was also inadequate because it created substantial doubt about whether the irrelevant consideration had been taken into account on a principal controversial issue. The error also tainted the basis on which the Inspector departed from Historic England’s assessment of the degree of harm.
4. Deliverability. Deliverability is not inherently irrelevant. It may be a material planning consideration where it bears on the planning merits, including where development would overcome longstanding regeneration problems, remediation difficulties and viability constraints. In that context, the ownership of the site by Homes England and its partnership with the developer were also relevant. The Inspector was entitled to give the consideration substantial weight.
5. The challenges to the assessment of living standards failed. The Inspector was entitled to take account of the BTR model and communal amenity space shown on the approved plans. She had addressed the relevant space standards, the shortfall, the communal facilities and the overall standard of living conditions sufficiently.
6. Relief. The court could not be satisfied that permission would inevitably have been granted if the error concerning heritage harm had not been made. The decision was quashed and the appeal was to be redetermined by a different Inspector.

First-instance statutory review under section 288 of the Town and Country Planning Act 1990. The Inspector’s planning appeal decision was quashed and the appeal was directed to be redetermined by a different Inspector.