Council of the City of Newcastle Upon Tyne v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 01 November 2022 |
| Neutral Citation | [2022] EWHC 2752 (Admin) |
| Docket Number | Case No: CO/2116/2022 |
| Year | 2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2752 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/2116/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
The Moot Hall, Castle Garth,
Newcastle-upon-Tyne, NE1 1RQ
Anjoli Foster (instructed by Newcastle City Council) for the Claimant
Victoria Hutton (instructed by the Government Legal Department) for the Defendant
Paul Tucker KC (instructed by Womble Bond Dickinson (UK) LLP for the First Interested
Party David Hardy (instructed by CMC Cameron McKenna Nabarro Olswang LLP) for the Second Interested Party
Hearing dates: 12 and 13 October 2022
Approved Judgment
This judgment was handed down remotely at 4.00pm on 1 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction:
Newcastle City Council (“NCC”) brings this application for statutory review against the decision dated 6 May 2022 of the Inspector appointed by the Secretary of State for Levelling Up, Housing and Communities, the defendant, in relation to Plot 12, East Quayside Newcastle-upon-Tyne (“the site”). The Inspector allowed an appeal brought by the developer, East Quayside 12 LLP (“EQ”), the first interested party, against a refusal of planning permission by NCC. The Inspector granted permission for a residential development comprising 289 apartments and up to 430m 2 residential amenity/commercial space on the ground floor within a building of between 11 and 14 storeys, with further residential amenity space, storage space, access, car parking, landscaping and urban realm works.
To the west of the site lies St. Ann's Quay, a large apartment complex, the eastern wing of which overlooks the site. St Ann's Quay Management Limited (“SAQML”) is the management company representing 91 leaseholders of apartments. It objected to the proposal and appeared at the public inquiry into the appeal. SAQML also appeared in these proceedings as the second interested party to support the claimant's grounds of challenge.
The application to NCC was made jointly by EQ and by the owner of the site, the Homes and Communities Agency (“Homes England”), established under Part 1 of the Housing and Regeneration Act 2008. Although EQ and Homes England were both parties to the planning obligation dated 18 March 2022 under s.106 of the Town and Country Planning Act 1990 (“TCPA 1990”), which was treated as a material consideration in the planning appeal, Homes England did not appeal against NCC's refusal of planning permission and was not a party to the appeal.
The proposed scheme has proved to be highly controversial. NCC received objections from 308 local residents, SAQML and the Northumberland and Newcastle Society. The points they raised included the excessive scale and massing of the development, poor architectural quality, impact on the setting of a Grade I listed building, St Ann's Church and its link with the River Tyne, impact on the Tyne Gorge and the Quayside, and impact on residential amenity.
The Assistant Director of Planning at NCC presented a report to the Planning Committee in which she recommended that planning permission be granted. The members of the Committee disagreed. The Inspector who conducted the planning appeal noted that, although the scheme had been amended so that the height was reduced by 6m, or the equivalent of 2 storeys, there remained “fierce opposition” to the scale of the proposed building.
In view of this considerable controversy, it is appropriate to refer to the limitations of judicial review and statutory review (see e.g. R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553 at [6]. It is not the role of the court to consider the merits or demerits of the proposed development, or to say whether it agrees with the Inspector's decision, or to decide whether or not planning permission should have been granted. Instead, the court's task is to consider the grounds of challenge which have been put forward by NCC and SAQML and to decide whether or not the Inspector's decision contains an error of law. If the court finds no error of law, it cannot intervene.
The principles governing legal challenges under s.288 of the TCPA 1990 have been well summarised in a number of decisions, including Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 407 at [24]–[28]; East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2018] PTSR 88 at [50]; St Modwen Development v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]–[7]; R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452 at [41]–[42]. In particular, decision letters should be read (1) fairly and as a whole, (2) in a straightforward and down-to-earth manner, without excessive legalism or criticism and (3) as if by a well informed reader who understands the principal controversial issues in the case. They should be read with “reasonable benevolence” (see also Sales LJ, as he then was, in Daventry District Council v Secretary of State for Communities and Local Government [2017] JPL 402 at [35]).
The principles governing an Inspector's legal obligation to give reasons for his or her decision are also well-established, and were set out in Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153 and South Bucks District Council v Porter (No.2) [2004] 1 WLR 257.
I am grateful to all advocates for their written and oral legal submissions.
The regeneration context
The inspector noted that following a long period of industrial decline Newcastle Quayside was recognised from the 1960s as an area in need of regeneration (DL 8). ding
In 1987 the Tyne and Wear Development Corporation was established under s. 135 of the Local Government, Planning and Land Act 1980 to regenerate an “urban development area” comprising land on the banks of the Rivers Tyne and Wear. Plot 12 became vested in the Corporation.
In 1989 the Corporation published the Newcastle Quayside Masterplan, prepared by Terry Farrell and Partners, with a vision to create a new district for Newcastle (DL 8). The Masterplan envisaged a run of commercial buildings from the west with Plot 12 as an end stop, and thereafter lower scale residential development to the east (DL 32). It was planned that the site would be developed as a hotel/conference/leisure centre. However, that never came to fruition (DL 13).
As the Inspector noted in DL 9:-
“Over the subsequent decades this area has been regenerated from its historic industrial past into a modern, vibrant area with commercial and residential uses and a wide paved footpath and cycleway to the riverside. The Quayside contains the Malmaison hotel conversion along with substantial office buildings and the Crown Court. There is also good connectivity with the Gateshead Quayside via the Millennium Bridge and access to cultural venues such as the Baltic and The Sage.”
In 2003 an “Urban Landscape Study of the Tyne Gorge” was prepared for inter alia English Heritage (now Historic England) and NCC. The Study identified potential threats to the character of the Gorge and opportunities for new development.
In 2004 consent was granted on plot 12 for residential units, office, food and drink uses and a multi-story car park. But this development never took place. In 2016 planning permission was sought for a 10–16 story building which would have included 124 apartments, but the application was later withdrawn. The Inspector noted (DL 10) that plot 12 formed a “notable gap site” which had been vacant for over 20 years. Along with Malmo Quay further to the east, it represents the last land within the area of the Masterplan to be developed on the Quayside.
Plot 12 became vested in Homes England as a statutory successor. By s.2 of the 2008 Act the objects of Homes England include securing (and supporting in other ways) the regeneration or redevelopment of land. By s.3 the Agency has a broad power to do anything it considers appropriate for the purposes of its objects. By s.5 the Agency may provide, or facilitate the provision of, housing. Under s.6 the Agency may regenerate or develop land, or facilitate such regeneration or development.
In 2018 Homes England published a Planning Brief prepared by consultants. This had been developed “in consultation with” or “in collaboration with” NCC. The document was not a local development document prepared by NCC as the local planning authority under the Planning and Compulsory Purchase Act 2004. However, in a letter dated 23 November 2018 and attached to the Brief, NCC stated that the document provides a framework for how plot 12 can be developed. “The brief provides clear, up to date guidance for prospective developers which reflects the discussions we have had over the last few months.” NCC stated that the brief established some key principles while allowing flexibility. The Council particularly welcomed the introduction of development on both the lower and upper plateaus of the site (see below). The Planning Brief sets out design and planning considerations for a residential-led mixed use development of the site.
Plot 12
The site is an open, vacant area of land of about 0.72 hectares located on the northern bank of the River Tyne. It spans two levels between a lower plateau on the Quayside and an upper plateau adjoining City Road to the north. The site includes a steep grassed embankment between these two plateaus which conceals a large structural retaining wall. There is a 15m...
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