Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the National Planning Policy Framework set out demanding duties for decision-makers concerning the protection of heritage assets when considering applications for development.
In East Quayside 12 LLP v Newcastle City Council [2023] EWCA Civ 359; [2023] PLSCS 60, the Court of Appeal has upheld a decision quashing planning permission for a large housing and commercial development in the East Quayside area of Newcastle upon Tyne because the inspector erred in considering the likely effects of the development on “heritage assets”, in particular St Ann’s Church, a Grade I listed building.
The proposed development was for the construction of apartments and commercial space in a building of 11 to 14 storeys with parking, on the northern bank of the River Tyne.
St Ann’s Church, a rare surviving example in the city of an eighteenth-century church was on higher ground to the north. The connection between the church and the river was of particular visual and historical importance. Historic England advised that the height of the proposed development would curtail the relationship with the river and harm the asset’s significance to a moderate degree and recommended addressing those issues to meet the NPPF requirements.
The appellant’s application for planning permission was initially refused but allowed by the inspector in May 2022 following an enquiry. The respondent council succeeded in establishing that the inspector fell into error in assessing the harm the development would cause to the setting of St Ann’s Church and quashing the decision.
Section 66 of the 1990 Act requires local planning authorities to have special regard to the desirability of preserving a listed building, its setting or any special features when considering whether to grant planning permission for development which impacts the building or its setting.
The NPPF requires great weight to be given to the conservation of any heritage asset affected by a proposal: any harm to or loss of significance to a Grade I listed building should be wholly exceptional.
The inspector decided that any development of the appellant’s land would affect the setting of St Ann’s Church and – given the constraints of the site – there could not be a vastly different design response which could further minimise the harm to the asset. Overall, the level of harm was less than substantial and, while there were policy conflicts, the public benefit in allowing the development to proceed outweighed the planning harms.
The judge and the Court of Appeal concluded that by taking account of the constraints of the site and the unavailability of a less harmful design the inspector had taken account of an irrelevant consideration.
There was a substantial doubt that the inspector’s assessment of the likely harm to the heritage asset was lawful. Her reasons were sufficiently obscure to invalidate her decision.
Louise Clark is a property law consultant and mediator
