North East council wins statutory review challenge over decision by planning inspector over quayside development

A dispute over the heritage impact of a planning application in Newcastle upon Tyne must be heard again by a different planning inspector, the High Court has ruled.

In Council of the City of Newcastle Upon Tyne v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2752 (Admin) Mr Justice Holgate said this was because the original inspector had felt “the decision she had to make was finely balanced”.

Newcastle City Council applied for statutory review against the inspector’s decision on the Plot 12 site on the city’s East Quayside.

The inspector allowed an appeal brought by developer East Quayside 12 for a residential development comprising 289 apartments and up to 430m2 of residential amenity/commercial space in a building of between 11 and 14 storeys.

St. Ann’s Quay, a large apartment complex, overlooks the site and its management company appeared as interested party to support the council.

The judge noted the scheme had been highly controversial with objections raised over claims of excessive scale and massing of the development, poor architectural quality, the impact on the Grade I listed St Ann's Church and impact on the Tyne Gorge.

Planning committee members disagreed with an officer’s report and rejected the application.

The inspector assessed the significance of the church, described as a fine example of a Georgian church and rare in Newcastle, which is visible from long distances, and concluded the location and scale of the proposed development would harm the significance of the church as regarded its setting.

Newcastle argued as a ground of appeal that the inspector’s assessment of harm to St Ann's Church as being at the "lower end of less than substantial harm" failed to pay special regard to the desirability of preserving the church's setting contrary to section 66(1) of the Planning (Listed Building and Conservation Areas) Act 1990 and failed to attribute great weight to the conservation of the church contrary to the National Planning Policy Framework.

It also argued that she had regard to irrelevant considerations and/or acted irrationally and failed to provide proper reasons.

The inspector had concluded that the harm to the church could not be further minimised by alternative designs, which the judge said amounted to a legal error.

Holgate J said: “The inspector took into account a legally irrelevant consideration when she reached her judgment…on the level of harm that would be caused by the appeal proposal itself.

“Even if that level of harm had been ‘minimised’, in the sense that it could not be reduced further by adopting a different design solution, that tells the reader nothing about what that ‘minimised’ level of harm amounts to.

 “In any given case harm to a heritage asset might be ‘minimised' by the design solution selected, but nevertheless still be ‘substantial’, or at the upper end or in the middle of the 'less than substantial harm' range.”

Holgate J said the inspector’s legal error tainted the basis upon which she disagreed with Historic England's advice”, which was a further ground put forward by Newcastle.

He rejected two other grounds argued by the council but said taking the inspector’s decision letter as a whole, “it is impossible for the court to say that the decision to grant planning permission would inevitably have been the same if the legal error had not been made…the decision must be quashed and the appeal redetermined afresh”.

The judge added: “Because of the nature of the error identified in this judgment and the inspector's view that the decision she had to make was finely balanced, the redetermination should be made by a different inspector.”

Mark Smulian