Court of Appeal rejects appeal after High Court quashed decision by planning inspector granting permission for Newcastle Quayside development

The Court of Appeal has dismissed an appeal against a High Court ruling that a planning inspector failed to take into account the impact of a proposed 289-apartment housing development on surrounding heritage buildings.

In East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne [2023] EWCA Civ 359, Sir Keith Lindblom, Senior President of Tribunals, found that the argument came down to whether the inspector who allowed the developer's appeal of Newcastle City Council's decision to refuse planning permission for the housing development erred in law when considering the likely effects on the settings of a nearby grade I listed church.

The planning application submitted by East Quayside 12, the appellant, was refused in March 2021, leading the developer to appeal to the Planning Inspectorate. A seven-day inquiry took place a year later, resulting in the planning inspector deciding to allow the appeal.

The council then successfully challenged the inspector's decision at the High Court, pushing the developer to pursue a further challenge at the Court of Appeal.

At the High Court, the council's claim was successful on one ground, which contended that: "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 and failed to attribute great weight to the conservation of the church contrary to the National Planning Policy Framework, and/or had regard to irrelevant considerations and/or acted irrationally. Further, and/or alternatively, the inspector failed to provide proper reasons."

Mr Justice Holgate, who presided over the case, largely accepted the contentions.

However, the developer appealed the ruling, arguing that Holgate J wrongly interpreted the last sentence of paragraph 71 of the inspector's 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".

It also argued that the judge was wrong to conclude that a "legal error" by the inspector in paragraph 71 tainted her disagreement with advice from Historic England that the harm to the setting of the listed building would be "moderate".

At the Court of Appeal, Sir Keith Lindblom said: "There is, I think, some merit in either party's interpretation. But having reflected on the rival arguments with the benefit of the careful submissions made to us on either side, I am inclined to accept, though with some hesitation, that the [High Court judge's] understanding of paragraph 71 was correct, essentially for the reasons he gave."

Lord Justice Lewis also dismissed the appeal noting that there is "a real ambiguity about the words used" by the inspector in her decision letter.

The wording left a "genuine and substantial doubt as to whether or not the inspector had taken a legally irrelevant consideration into account," Lewis LJ added.

Lady Justice Laing agreed with both the Senior President of Tribunals and Lewis LJ.

Adam Carey