Introduction

East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne is a pivotal case adjudicated by the Court of Appeal (Civil Division) of England and Wales on March 31, 2023. The case centers on an appeal against the refusal of planning permission for a significant development project in the East Quayside area of Newcastle upon Tyne. The primary legal question addressed was whether the inspector erred in law by improperly considering site constraints when assessing the likely effects of the proposed development on the setting of St Ann's Church, a grade I listed building.

The appellant, East Quayside 12 LLP, sought to develop Plot 12 with 289 apartments and commercial spaces. The Council of Newcastle and St Ann's Quay Management Ltd. opposed the development, citing potential harm to the heritage asset's setting. The initial decision by an inspector favored East Quayside 12 LLP, but the Council challenged this decision, leading to the appellate review.

Summary of the Judgment

The Court of Appeal upheld the lower court's decision to quash the inspector's order that had allowed East Quayside 12 LLP's appeal. The appellate judges found that the inspector had potentially committed a legal error in her assessment by considering "key constraints of the plot"—factors that were not directly relevant to the intrinsic harm the proposed development would inflict on the setting of St Ann's Church. This consideration led to an ambiguity in determining whether the harm was genuinely "less than substantial," as required by planning policies.

The judgment emphasized that while inspectors must consider national policies and guidelines, they should focus solely on the development's direct impact on heritage assets without being influenced by other site-specific constraints that do not pertain to the actual harm caused.

Analysis

Precedents Cited

The judgment referenced several key cases and guidelines to anchor its reasoning:

• Save Britain's Heritage v Number 1 Poultry Ltd. [1991] 1 W.L.R. 153 and South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953: These cases established the standards for assessing the adequacy and intelligibility of decision-maker's reasons.
• Simplex GE Holdings Ltd. v Secretary of State for the Environment [2017] PTSR 1071: Highlighted the principle that appellate courts cannot be certain that a decision would have remained unchanged absent the identified error.
• Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] UKSC 37: Emphasized the need for decision-makers to provide clear and comprehensive reasoning in their decisions.

Additionally, the judgment heavily relied on statutory provisions such as Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and policies outlined in the National Planning Policy Framework (NPPF), ensuring that heritage conservation principles were upheld.

Legal Reasoning

The court scrutinized the inspector's decision letter, particularly focusing on the final sentence of paragraph 71: "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." The ambiguity hinged on whether "key constraints of the plot" referred solely to factors intrinsic to the development's impact on the heritage asset or if it incorporated considerations irrelevant to the harm assessment, such as the feasibility of alternative designs.

The appellate judgment concluded that the inspector's reasoning was flawed because it intertwined relevant and irrelevant considerations. By factoring in the site constraints—which could include the impossibility of less harmful designs—the inspector potentially diluted the integrity of the harm assessment. This blending led to uncertainty about whether the concluded "less than substantial harm" was genuinely reflective of the development's impact or influenced by extraneous factors.

Consequently, the court found that the inspector failed to comply with her statutory duty under Section 66(1) by not maintaining a clear and focused assessment of harm solely based on the development's direct effects on St Ann's Church.

Impact

This judgment sets a clear precedent for future heritage impact assessments in planning applications. It underscores the necessity for inspectors and decision-makers to:

• Maintain a focused assessment on the direct impact of a development on heritage assets without letting unrelated site constraints influence the harm evaluation.
• Ensure clarity and adequacy in reasoning to avoid ambiguities that can lead to legal challenges.
• Adhere strictly to statutory duties and national policies, particularly in cases involving significant heritage assets.

Furthermore, the case reinforces judicial oversight on planning decisions, ensuring that heritage conservation remains a paramount consideration free from irrelevant external influences.

Complex Concepts Simplified

Heritage Asset: A heritage asset is any building, structure, landscape, or site that has historical, architectural, or cultural significance and is often protected by law to preserve its character and importance.

Setting: In the context of heritage conservation, the "setting" refers to the environment surrounding a heritage asset that contributes to its significance. This includes the spatial arrangement, visual context, and historical relationships with nearby structures or landscapes.

Less than Substantial Harm: A term from the National Planning Policy Framework (NPPF) indicating that the negative impact of a development on a heritage asset is minor and acceptable, provided it is balanced against the public benefits of the proposal.

Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: A statutory provision that mandates local planning authorities to give special consideration to preserving listed buildings or their settings when deciding on planning applications.

Inspector's Decision Letter: A formal written document issued by a planning inspector outlining the reasons for approving or rejecting a planning application after an appeal.

Conclusion

The East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne judgment serves as a crucial reminder of the boundaries within which planning inspectors must operate when assessing the impact of developments on heritage assets. By delineating the limits of permissible considerations, particularly emphasizing the need to focus solely on the development's direct effects without being swayed by unrelated site constraints, the court reinforced the integrity of heritage conservation in urban planning.

The decision underscores the importance of clear and focused reasoning in inspectorial decisions, ensuring that heritage protection remains uncompromised. For developers, councils, and heritage bodies, this case highlights the necessity of meticulous adherence to statutory duties and national policies, fostering a balanced approach that safeguards historical assets while accommodating urban development.