Nasir Kazalbash v Secretary of State for Levelling Up, Housing and Communities & Anor
[2023] EWCA Civ 904
East Quayside 12 LLP v The Council of the City of Newcastle Upon Tyne
31 March 2023
[2023] EWCA Civ 359
Court of Appeal
A developer wanted to build near a historic church. An inspector said the building would cause a small amount of harm to the church. A judge said the inspector made a mistake by also considering that it was impossible to design a better building with less harm. The Court of Appeal agreed with the judge, meaning the decision to allow the building has to be reconsidered.
Key Facts
- •East Quayside 12 LLP appealed against a High Court order quashing the inspector's decision to allow their planning appeal for a large development in Newcastle.
- •The key issue was the inspector's assessment of harm to the setting of St Ann's Church, a Grade I listed building.
- •The inspector found the harm to be "less than substantial harm", towards the lower end of that scale.
- •Historic England assessed the harm as "moderate", disagreeing with the inspector's assessment.
- •The High Court judge found the inspector erred in law by considering the impossibility of a less harmful design as relevant to the level of harm caused by the proposed development itself.
- •The Court of Appeal considered whether the judge was correct in finding the inspector's reasoning legally defective.
Legal Principles
In considering planning permission affecting a listed building or its setting, special regard must be given to preserving the building or its setting.
Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990
When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation.
Paragraph 199 of the National Planning Policy Framework (NPPF)
Proposals should avoid or minimise any conflict between a heritage asset’s conservation and any aspect of the proposal.
Paragraph 195 of the NPPF
Less than substantial harm to a heritage asset should be weighed against the public benefits of the proposal.
Paragraph 202 of the NPPF
In assessing harm, the decision-maker must focus on the harm the proposed development itself would cause, not what a different development might cause.
Case law discussed in paragraphs 39-49
Inspectors' decision letters should not be read with excessive legalism but with appropriate benevolence.
Case law cited in paragraph 36
A decision will only be set aside if the reasoning gives rise to a substantial doubt as to whether the inspector erred in law.
Case law cited in paragraph 37
Outcomes
The Court of Appeal dismissed the appeal.
The court found that the inspector's reasoning was legally defective because it was unclear whether she had considered an irrelevant factor (the impossibility of a less harmful design) when assessing the level of harm caused by the proposed development.
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