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

In applying the statutory duty to preserve a listed building or its setting, the decision-maker must assess the harm caused by the development actually proposed. A different or less harmful design cannot reduce that assessment, although the availability of alternatives may matter in the final balance between harm and public benefit.

The extent of harm within the category of less than substantial harm is a matter of fact and planning judgment. Reasons must be intelligible and adequate on principal important controversial issues. Genuine uncertainty about whether an irrelevant alternative-design consideration influenced the harm assessment can invalidate the decision. The appeal was dismissed and the inspector’s decision remained quashed.

East Quayside 12 LLP appealed against Holgate J.’s order allowing the Council’s challenge under section 288 of the Town and Country Planning Act 1990 and quashing an inspector’s decision under section 78 of that Act. The inspector had allowed an appeal against refusal of planning permission for a large mixed-use development on Plot 12, East Quayside.

The challenge concerned the proposed development’s effect on the setting of St Ann’s Church, a grade I listed building. The appeal focused on the meaning of the inspector’s reference to the key constraints of the plot, whether the inspector had treated the absence of a less harmful design as relevant to the level of harm, and whether her reasons adequately explained her disagreement with Historic England’s assessment of moderate harm.

1. Appeal dismissed. The Court of Appeal upheld the order quashing the inspector’s decision. The leading judgment was given by the Senior President of Tribunals; Lewis LJ agreed with paragraphs 51–53, and Lady Justice Elisabeth Laing agreed with Lewis LJ.
2. The duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 is demanding. The degree of harm to a heritage asset is a matter of fact and planning judgment, depending on the circumstances. The NPPF prescribes no particular method for identifying or gauging harm. The weight given to preservation is not identical in every case.
3. In assessing harm, the decision-maker must focus on the harm caused by the development actually proposed. The existence or absence of a different design that might cause less harm cannot reduce the level of harm caused by the proposed scheme. It may nevertheless be relevant, and potentially important, in the final balance between harm and benefit.
4. The inspector’s analysis of the significance of St Ann’s Church and the harm caused by the proposal in paragraphs 63–70 was individually unimpeachable. However, paragraph 71 was an overall conclusion on the level of harm. Its reference to the key constraints of the plot could naturally include the preceding conclusion that no alternative design could further minimise the harm. The inspector did not distinguish that comparative question from the assessment of intrinsic harm.
5. Planning reasons must be read fairly and with appropriate benevolence, rather than excessive legalism. They must nevertheless be intelligible and adequate on the principal important controversial issues. Here there was genuine, non-forensic substantial doubt whether an irrelevant consideration had influenced the assessment of harm to a grade I listed building. The reasons were therefore legally defective, notwithstanding the importance of the usual reasons standard described in [1991] 1 W.L.R. 153 and [2004] 1 W.L.R. 1953.
6. The court could not be sure that the decision would inevitably have been the same without the error. The discretion to refuse relief under the principle in Simplex was therefore unavailable. A different outcome on redetermination could not be ruled out.

• Court of Appeal (Civil Division) — In [2023] EWCA Civ 359, dismissed East Quayside 12 LLP’s appeal and upheld the quashing of the inspector’s decision.
• High Court of Justice, King’s Bench Division, Planning Court — In [2022] EWHC 2752 (Admin), Holgate J. allowed the Council’s section 288 challenge on ground 2 and quashed the inspector’s decision.