East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne

The Court of Appeal considered whether the planning inspector erred in law in her assessment of the effect of a proposed development on the setting of St Ann's Church (a grade I listed building). The statutory duty in issue was section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and relevant national policy in the National Planning Policy Framework (notably paragraph 195 and the requirement to weigh less than substantial harm under paragraph 202). The inspector found "less than substantial harm" and described it as "towards the lower end" of that category in paragraph 71 of her decision letter. The High Court quashed the inspector's decision on the ground that paragraph 71 showed she had, impermissibly, taken into account the absence of a less harmful alternative design (a matter irrelevant to the assessment of the harm caused by the proposed development itself) and had therefore failed to give adequate reasons and to discharge the section 66(1) duty.

The Court of Appeal agreed that paragraph 71 was ambiguous and that the inspector's reasons were not intelligible and adequate: there was a real and substantial doubt that she had taken an immaterial consideration into account when assessing the level of harm. The court therefore dismissed the appellant's appeal against the High Court order, upholding the quashing of the inspector's decision.

Background and parties

• The appellant, East Quayside 12 LLP, sought planning permission for a large residential-led mixed use development on Plot 12, East Quayside, Newcastle upon Tyne. The respondent was the Council of the City of Newcastle upon Tyne. The Secretary of State for Levelling Up, Housing and Communities was the first interested party; St Ann's Quay Management Limited was the second interested party.
• The council refused permission in March 2021. The inspector allowed the appellant's s.78 appeal by decision letter dated 6 May 2022. The council brought proceedings under s.288 of the Town and Country Planning Act 1990 and Holgate J. (Planning Court) allowed that application on 1 November 2022, quashing the inspector's decision. The developer appealed to the Court of Appeal with permission.

Nature of the claim / relief sought

The appeal was against the High Court order quashing the inspector's grant of planning permission; the developer sought reinstatement of the inspector's decision.

Issues before the Court of Appeal

1. Whether the inspector, in paragraph 71 of her decision letter, wrongly relied on the "key constraints of the plot" and the absence of a less harmful alternative design when assessing the degree of harm the proposed development would cause to St Ann's Church, thereby failing to discharge the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
2. Whether the inspector gave adequate reasons for departing from Historic England's advice that the harm would be of a "moderate" degree and whether any legal error in paragraph 71 tainted her disagreement with Historic England.

Court's reasoning

• The court noted that the assessment of what amount(ed) to "substantial" or "less than substantial" harm is a matter of fact and planning judgment for the decision-maker and that the decision-maker must focus on the harm the proposed development itself would cause, not what some alternative scheme might cause.
• The inspector had correctly identified the significance of St Ann's Church and had recorded Historic England's view that the harm would be "moderate". She also lawfully concluded in several paragraphs that the proposed development would cause harm to the setting of the church and that the design could not reasonably be judged to improve that setting.
• The decisive point was paragraph 71 where the inspector described the harm as "towards the lower end" of "less than substantial harm" and prefaced that conclusion with the words "given the key constraints of the plot and the nature of the harm identified". The court found those words ambiguous and could not be confident that the inspector had not taken into account the absence of a less harmful alternative design when determining the degree of harm attributable to the proposed development itself — a consideration immaterial to that assessment though relevant to the overall planning balance.
• Because the ambiguity led to a real and substantial doubt about whether the inspector had taken an irrelevant consideration into account on a principal controversial issue, her reasons were not "intelligible and adequate" for the purposes of judicial review authorities (Save Britain’s Heritage; South Bucks). The Court of Appeal accepted Holgate J.'s conclusion that this rendered the decision unlawful and that it was not possible to be sure the outcome would inevitably have been the same absent the error (Simplex principle applied).

Disposition and wider context

The Court of Appeal dismissed the developer's appeal, thereby upholding the High Court order quashing the inspector's decision. The court emphasised that the case did not introduce any new point of law but illustrated the demanding nature of the decision-maker's duties under section 66(1) and the need for clear, intelligible reasons where a decision departs from specialist advice such as that of Historic England.

Appeal dismissed. The Court of Appeal agreed with the High Court that the inspector's reasoning in paragraph 71 of the decision letter was ambiguous and not intelligible and adequate: there was a real and substantial doubt that she had taken an immaterial consideration (the absence of an alternative, less harmful design) into account when assessing the degree of harm to the setting of the grade I listed St Ann's Church, thereby failing to discharge the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and to give adequate reasons for departing from Historic England's advice.

Appeal from Holgate J.'s order in the Planning Court allowing the council's application under section 288 of the Town and Country Planning Act 1990 and quashing the planning inspector's decision to allow the s.78 appeal. High Court decision: Holgate J., [2022] EWHC 2752 (Admin) (order dated 1 November 2022). Inspector's decision letter dated 6 May 2022. Permission to appeal granted by Lewison L.J.