Town and country planning – Planning permission – Listed building – Respondent local authority refusing planning permission development near Grade I listed building – Inspector appointed by secretary of state allowing appellant’s appeal – High court quashing decision – Appellant appealing – Whether inspector erred in assessing harm to significance of listed building – Appeal dismissed
The appellant developer applied to the respondent local authority for planning permission to construct 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 in the East Quayside area of Newcastle upon Tyne. The second interested party objected to the proposed development arguing, amongst other things, that it would be harmful to the significance of St Ann’s Church, a grade I listed building.
The respondent refused the application but an inspector appointed by the first interested party secretary of state allowed the appellant’s appeal against that refusal under section 78 of the Town and Country Planning Act 1990. The High Court subsequently allowed the respondent’s application under section 288 of the 1990 Act and quashed the inspector’s decision: [2022] EWHC 2752 (Admin).
The appellant appealed contending that, in assessing the harm to the significance of the 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 issues were whether the judge: (i) wrongly interpreted the decision letter, in which the inspector said that, “…given the key constraints of the plot and the nature of the harm identified, the development would cause “less than substantial harm”; and (ii) wrongly concluded that the inspector’s “legal error” tainted her disagreement with Historic England’s advice that there would be moderate harm to the setting of the listed building.
Held: The appeal was dismissed.
(1) The essence of the dispute between the parties went to the meaning of the inspector’s words in paragraph 71 of the decision letter, “given the key constraints of the plot and the nature of the harm identified”, read properly in context. The question was whether the inspector showed that she had brought an irrelevant matter into her assessment of the level of harm the development itself would cause to the significance of the church as a listed building and her conclusion that such harm would be “towards the lower end” of “less than substantial harm”, namely the absence of an alternative design that would or might cause less harm within that category.
To a planning audience, the expression “the key constraints of the plot” denoted factors, whether physical, such as topography, infrastructure, the presence and form of development on adjacent land, or in relevant policy or guidance, or in some other way, which limited or restricted the ability of a developer to carry out development on a site. Such factors might also make it impossible for a viable alternative design to reduce planning harm, such as harm to heritage assets. But the absence, hypothetically, of a less harmful scheme could not serve to reduce the level of harm which would actually be caused by the development.
(2) Where an inspector’s reasons were called into question, the court would ask itself whether the interests of the applicant had been substantially prejudiced by the deficiency of the reasons given. It would ask itself whether the reasons were intelligible and adequate and, in particular, whether they enabled the reader to understand what conclusions were reached on the principal important controversial issues, and why the appeal was decided as it was. It would only set aside the decision if the reasoning gave rise to a substantial doubt whether the inspector erred in law. The question for the court was whether the decision maker’s reasons left genuine, rather than merely forensic, doubt over what was decided and why: Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 3 PLR 17, South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 and R (on the application of CPRE Kent) v Dover District Council [2018] EGLR 1 considered.
Here, the inspector was performing the statutory duty in assessing the likely harm to a designated heritage asset of the highest significance, a grade I listed building. And her conclusion was at odds with the advice of Historic England. Those were the circumstances in which the lawfulness of the inspector’s reasoning was to be judged. The relevant standard to apply in assessing the adequacy of her reasons was the usual standard under the principles explained in Save Britain’s Heritage, South Bucks District Council v Porter (No 2) and Mordue v Secretary of State for Communities and Local Government [2016] 1 WLR 2682.
(3) Applying those principles, the court had to consider whether there was substantial doubt that the inspector’s assessment of the likely harm to the significance of the church as a grade I listed building was lawful: In this case there was such doubt. There was a deficiency in the inspector’s reasoning because it was not clear what she meant in paragraph 71 of her decision letter. Reading that sentence in context, one could not be confident that she did not take into account an immaterial consideration in assessing the level of harm to the listed building. There was a real uncertainty about what she meant in her reasoning on one of the principal important controversial issues in the section 78 appeal. Her reasons were sufficiently obscure to invalidate her decision.
(4) This was not a case in which, under the principle stated in Simplex GE Holdings Ltd v Secretary of State for the Environment [1988] 3 PLR 25, the court could be sure that the decision would necessarily have been the same if the error of law had not been made.
The impact on the church was an important issue. The inspector’s reasons did not adequately explain her conclusion on that issue and left a genuine and substantial doubt whether the inspector had taken a legally irrelevant consideration into account.
The flaw in the inspector’s reasons affected her performance of the section 66(1) duty. If the appeal went back to the secretary of state for redetermination the outcome might well be the same but it was not impossible to foresee a different outcome.
Paul Tucker KC and Freddie Humphreys (instructed by Womble Bond Dickinson (UK) LLP) appeared for the appellant; Anjoli Foster (instructed by Newcastle City Council) for the respondent; The interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of East Quayside 12 LLP v Newcastle City Council
