East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lady Justice Elisabeth Laing |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWCA Civ 359 |
| Docket Number | Case No: CA-2022-002218 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
and
[2023] EWCA Civ 359
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2022-002218
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Tucker KC and Freddie Humphreys (instructed by Womble Bond Dickinson (UK) LLP) for the Appellant
Anjoli Foster (instructed by the Council of the City of Newcastle upon Tyne) for the Respondent
The Interested Parties did not appear and were not represented
Hearing date: 3 March 2023
Approved Judgment
This judgment was handed down remotely at 3.45pm on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Senior President of Tribunals:
Introduction
The central question in this case is whether an inspector who allowed an appeal against the refusal of planning permission for a large development of housing and commercial uses in the East Quayside area of Newcastle upon Tyne erred in law when considering the likely effects of the development on “heritage assets”, in particular the setting of St Ann's Church, a grade I listed building. It does not give rise to any new point of law.
The appellant, East Quayside 12 LLP, is the developer. With permission granted by Lewison L.J., it appeals against the order of Holgate J., dated 1 November 2022, allowing an application made by the respondent, the Council of the City of Newcastle upon Tyne, under section 288 of the Town and Country Planning Act 1990 and quashing the decision of the inspector appointed by the Secretary of State for Levelling Up, Housing and Communities, the first interested party, to allow East Quayside 12's appeal under section 78 of the 1990 Act against the council's refusal of planning permission for development on Plot 12, East Quayside. The proposal was for the construction of 289 apartments and up to 430 square metres of residential amenity and commercial space in a building of between 11 and 14 storeys, with parking and other development. An objector, St Ann's Quay Management Ltd., is the second interested party. It supported the council's challenge at the hearing below.
East Quayside 12's application for planning permission was submitted to the council in March 2020. The council refused it in March 2021. The inspector held an inquiry into East Quayside 12's section 78 appeal over seven days in March 2022. Her decision allowing the appeal is in a decision letter dated 6 May 2022. The council's challenge under section 288 was on three grounds. We are concerned only with one of those grounds, ground 2, which asserts that the inspector fell into error in assessing the harm the development would cause to the setting of St Ann's Church. The challenge succeeded on that ground alone. The Secretary of State did not appeal against the judge's order. He has taken no part in the proceedings in this court. Neither has St Ann's Quay Management.
The issues in the appeal
Ground 2 of the section 288 application was this:
“In assessing the harm to the significance of St Ann's Church as at the “lower end of less than substantial harm” the Inspector failed to pay special regard to the desirability of preserving the Church's setting contrary to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 [“the Listed Buildings Act”] and failed to attribute great weight to the conservation of the Church contrary to the National Planning Policy Framework [“the NPPF”], and/or had regard to irrelevant considerations and/or acted irrationally. Further, and/or alternatively, the Inspector failed to provide proper reasons.”
Holgate J. largely accepted those contentions. East Quayside 12 says he was wrong to do so. Its appeal to this court raises two main issues. The first is whether the judge wrongly interpreted the last sentence of paragraph 71 of the decision letter, in which the inspector said that, “… given the key constraints of the plot and the nature of the harm identified, this is towards the lower end of any such scale within that classification” – that is, “less than substantial harm”. The second is whether the judge was wrong to conclude that the inspector's “legal error” in paragraph 71 tainted her disagreement with Historic England's advice that the harm to the setting of the listed building would be “moderate”. These two issues can conveniently be dealt with together.
Section 66(1) of the Listed Buildings Act
Section 66(1) of the Listed Buildings Act provides:
“66(1) In considering whether to grant planning permission … for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
Relevant national policy and guidance
In the version of the NPPF current at the time of the inspector's decision, paragraph 195 states, under the heading “Proposals affecting heritage assets”:
“195. Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affecting the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this into account when considering the impact of a proposal on a heritage asset, to avoid or minimise any conflict between the heritage asset's conservation and any aspect of the proposal.”
Under the heading “Considering potential impacts”, paragraphs 199, 200 and 202 state:
“199. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.
200. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:
…
b) assets of the highest significance, notably … grade I and II* listed buildings …, should be wholly exceptional.
…
202. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.”
In its guidance on the “Historic Environment”, the Planning Practice Guidance issued by the Government in July 2019 (“the PPG”) states in paragraph 008, under the heading “How can proposals avoid or minimise harm to the significance of a heritage asset?”, that “[early] appraisals, a conservation plan or targeted specialist investigation can help to identify constraints and opportunities arising from the asset at an early stage”, and that “[such] appraisals or investigations can identify alternative development options, for example more sensitive designs or different orientations, that will both conserve the heritage assets and deliver public benefits in a more sustainable and appropriate way”. In paragraph 018 the PPG says that where potential harm to designated heritage assets is identified, it needs to be categorised as either less than substantial harm or substantial harm, and that “[within] each category of harm (which category applies should be explicitly identified), the extent of the harm may vary and should be clearly articulated”.
Guidance has also been issued by Historic England in a document entitled “Historic Environment Good Practice Advice in Planning: 3” (“GPA3”), which describes the steps to be taken in assessing harm to the significance of an historic asset:
“Step 1: Identify which heritage assets and their settings are affected
Step 2: Assess the degree to which these settings and views make a contribution to the significance of the heritage asset(s) or allow significance to be appreciated
Step 3: Assess the effects of the proposed development, whether beneficial or harmful, on the significance or on the ability to appreciate it
Step 4: Explore ways to maximise enhancement and avoid or minimise harm”.
Paragraph 39 of GPA3 gives advice on step 4:
“Options for reducing the harm arising from development may include the repositioning of a development or its elements, changes to its design, the creation of effective long-term visual or acoustic screening, or management measures secured by planning conditions or legal agreements. For some developments affecting setting, the design of a development may not be capable of sufficient adjustment to avoid or significantly reduce the harm, for example where impacts are caused by fundamental issues such as the proximity, location, scale, prominence or noisiness of a development. In other cases, good design may reduce or remove the harm, or provide enhancement. Here the design quality may be an important consideration in determining the balance of harm and benefit.”
Plot 12
Plot 12 comprises about 0.72 hectares of open land on the northern bank of the River Tyne. The upper part of the site extends to City Road to the north. The lower part is adjacent to the quay. Between the two levels is a steep grass embankment, concealing a...
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