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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Whitby v Secretary of State for Transport Secretary of State for Communities and Local Government & Ors [2015] EWHC 2804 (Admin) (14 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2804.html Cite as: [2015] EWHC 2804 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 October 2015

Mrs Justice Lang:

1. The Claimant brings three related claims challenging the decision to construct the Ordsall Chord - a proposed 340m elevated chord railway in the Ordsall area of Greater Manchester - which will link the three main stations in Manchester, and improve rail capacity. The challenge arises from the choice of route, which will result in substantial harm to a collection of listed heritage assets associated with the historic development of the railways in the 19^th century. An alternative route (Option 15) which would avoid this harm has been rejected.
2. The Claimant, who is a former President of the Institution of Civil Engineers, heads an engineering practice and has wide experience in major engineering projects. He was a member of the Design Panel for the Ordsall Chord, and a proponent of Option 15. He resigned from the Panel to enable him to appear as an objector at the Inquiry.
3. The Claimant brings three claims:

i) an application under section 22 of the Transport and Works Act 1992 ("TWA 1992"), under CPR Pt 8;

ii) an application under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("PLBCAA 1990"), under CPR Pt 8;

iii) an application for judicial review of the deemed planning permission granted pursuant to section 90(2A) of the Town and Country Planning Act 1990 ("TCPA 1990"), under CPR Pt 54.

4. By order of Dove J., dated 5 June 2015, all three claims were ordered to be heard together and the application for permission to apply for judicial review was listed as a rolled-up hearing with the substantive claim for judicial review.

The decisions

5. On 16 September 2013, Network Rail Infrastructure Limited ("NR") applied to the Secretary of State for Transport ("SST") to make the Network Rail (Ordsall Chord) Order ("the Order"), under the TWA 1992, to construct and maintain a new chord railway in Manchester and Salford.
6. NR also applied to the SST for a direction under section 90(2A) of the TCPA 1990 granting deemed planning permission, subject to conditions, for the works specified in the Order.
7. On 16 September 2013, NR made ten associated applications for listed building consent to Manchester City Council and Salford City Council, which were automatically referred to the Secretary of State for Communities and Local Government ("SSCLG") for decision, pursuant to section 12 of the PLBCAA 1990.
8. The SST and the SSCLG appointed an Inspector, Mr Brendan Lyons, to conduct concurrent Inquiries and submit a report. The Inquiries sat for 13 days, and the Inspector made an accompanied and unaccompanied site visits. In a lengthy report, dated 6 January 2015, he accepted that the proposed scheme ("the Scheme") would cause substantial harm to heritage assets, but he found that there was no reasonable alternative route for the rail link, and the public benefits to be achieved by the rail link justified the harm. Therefore he recommended that the Order sought should be made and that the applications for deemed planning permission and listed building consent should be granted, subject to conditions.
9. On 25 March 2015, the SST issued a decision letter in which he agreed with the recommendations of the Inspector and gave notice of his intention to make the Order and planning direction sought. The Order was duly made, pursuant to sections 1, 3 and 5 of the TWA 1992, on 30 March 2015. Deemed planning permission for the development in the Order was then given under section 90(2A) of the TCPA 1990.
10. On 25 March 2015, the SSCLG issued two decision letters (one to Manchester City Council and the other to Salford City Council) in which he agreed with the recommendations of the Inspector, and granted listed building consent, subject to conditions, pursuant to sections 8, 16 and 17 of the PLBCAA 1990.

Grounds of challenge

11. The way in which the grounds in the Claimant's skeleton argument were formulated differed from the pleading in his claim form. No objection was taken to this by the Defendants. I have therefore treated the grounds in the claim form as if amended by the skeleton argument.
12. Ground 1. The Claimant submits that the Inspector, and subsequently the SST and SSCLG, erred in their interpretation of paragraph 133 of the National Planning Policy Framework ("NPPF") which states that where a development will cause substantial harm to designated heritage assets, permission should be refused "unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits". The Claimant submits that NR was required to demonstrate that it was not possible to deliver the substantial public benefits of the Ordsall Chord without causing substantial harm to the designated heritage assets. If there was another means of achieving the "substantial public benefits" without causing "substantial harm or loss" to heritage assets, the harm could not be said to be "necessary". The broad approach taken by the Inspector, and the Secretaries of State, in deciding that Option 15 was not a reasonable alternative, because of its adverse impact on the regeneration proposals for Middlewood Locks, departed from the clear meaning of paragraph 133 and wrongly diluted the protection afforded to heritage assets under the NPPF.
13. Ground 2. If, contrary to the Claimant's primary submission on Ground 1, the Inspector and the Secretaries of State were entitled to take a broad approach and consider whether Option 15 was a reasonable alternative, they were required as part of that exercise to apply the duties in sections 66(1) and 72(1) of the PLBCAA 1990, to give "considerable importance and weight" (per Sullivan LJ in Barnwell Manor, at [29]) to the fact that Option 15 would preserve the designated assets which would be harmed by the Scheme, and give adequate reasons for finding that the adverse effect on the regeneration of Middlewood Locks caused by Option 15 outweighed the harm to the heritage assets caused by the Scheme. They failed so to do.
14. Ground 3. If, contrary to the Claimant's primary submission on Ground 1, the Inspector and the Secretaries of State were entitled to take a broad approach and consider whether Option 15 was a reasonable alternative, they erred in failing to consider whether the substantial benefits of a rail link outweighed the adverse impact on the regeneration proposals for Middlewood Locks, or failing to give adequate reasons for their conclusion on this issue.

The statutory framework

15. Section 1 of the TWA 1992 makes provision for the SST to make an order relating to the construction of a railway, by way of a statutory instrument. Such an order may encompass several different authorisations, for example, compulsory purchase and planning permission.
16. Section 16 of the TWA 1992 provides:

"16. Town and Country Planning

(1) In section 90 of the Town and Country Planning Act 1990 (which gives power to deem planning permission to be granted in certain cases where development is authorised by a government department) after subsection (2) there shall be inserted –

"(2A) On making an order under section 1 or 3 of the Transport and Works Act 1992 which includes provision for development, the Secretary of State may direct that planning permission for development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.""

17. There are no statutory criteria for the making of an order under section 1 of the TWA 1992. However, since this Order required planning permission, in making his decision the SST followed his usual practice and took into account both national and local planning policies as relevant considerations. In doing so, he recognised that the policies in the NPPF and the local development plan which protect heritage assets reflected the statutory duties in section 66 and 72 of the PLBCAA 1990, though these statutory duties are not directly applicable to a TWA Order or the giving of directions as to deemed planning permission (paragraph 9 of the SST's letter of 25 March 2015).
18. The PLBCAA 1990 restricts works affecting listed buildings unless authorised (section 7). Section 16 provides:

"16(1) Subject to the previous provisions of this Part, the local planning authority, or as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions.

(2) In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

…"

19. An application for listed building consent in conjunction with an order under the TWA 1992 is automatically referred to the Secretary of State. Section 17 of the TWA 1992 provides:

"17. Listed buildings and conservation areas

In section 12 of the Planning (Listed Buildings and Conservation Areas) Act 1990, after subsection (3) there shall be inserted –

"(3A) An application for listed building consent shall, without any direction by the Secretary of State, be referred to the Secretary of State instead of being dealt with by the local planning authority in any case where the consent is required in consequence of proposals included in an application for an order under section 1 or 3 of the Transport and Works Act 1992.""

20. Section 66(1) PLBCAA 1990 provides:

"66. General duty as respects listed buildings in exercise of planning functions

(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."

21. Section 72(1) of the PLBCAA 1990 provides:

"72. General duty as respects conservation areas in exercise of planning functions

(1) In the exercise, with respect to any buildings or other land in a conservation area, of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."

National Planning Policy Framework

22. The above-mentioned statutory duties under the PLBCCA 1990 are to be read together with national policy on "Conserving and enhancing the historic environment" in section 12 of the NPPF. Paragraphs 131 to 135 state:

"131. In determining planning applications, local planning authorities should take account of:

the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;

the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality; and

the desirability of new development making a positive contribution to local character and distinctiveness.

132. 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. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.

133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:

the nature of the heritage asset prevents all reasonable uses of the site; and

no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; and

conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and

the harm or loss is outweighed by the benefit of bringing the site back into use.

134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

135. The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset."

23. The terms "Heritage asset" and "Designated heritage asset" are defined in Glossary:

"Heritage asset: A building, monument, site, place, area of landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing)."

"Designated heritage asset: A World Heritage Site, Scheduled Monument, Listed Building, Protected Wreck Site, Registered Park and Garden, Registered Battlefield or Conservation Area designated under the relevant legislation."

The legal scope of the challenges

24. The Claimant challenges the making of the Order pursuant to section 22 of the TWA 1992 which provides:

"22. Validity of orders under section 1 or 3."

If a person aggrieved by an order under section 1 or 3 above desires to question the validity of it, or of any provision contained in it, on the ground -

that it is not within the powers of this Act, or

that any requirement imposed by or under this Act or the Tribunals and Inquiries Act 1992 has not been complied with,

he may, within the period of 42 days beginning with the day on which the notice required by section 14(1)(b) above is published, make an application for the purpose to the High Court."

25. The Claimant challenges the listed building consents pursuant to section 63 of the PLBCA 1990 which provides:

"63. Proceedings for questioning validity of other orders, decisions and directions.

If any person is aggrieved by any such order or decision as is mentioned in section 62(1) and wishes to question its validity on the grounds -

that it is not within the powers of this Act, or

that any of the relevant requirements have not been complied with in relation to it,

he may make an application to the High Court under this section."

26. It is common ground that the applications under section 22 of the TWA 1992 and section 63 of the PLBCA 1990 are statutory reviews, similar in scope to an application under section 288 of the TCPA 1990. The general principles of judicial review are applicable. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
27. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6] – [8]:

"… An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."

28. In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, the House of Lords held that the proper interpretation of planning policy is ultimately a matter of law for the court, and a failure by a planning authority to understand and apply relevant policy will amount to an error of law. By analogy, a decision of the SST or SSCLG based on a flawed understanding or application of relevant policy is likely to vitiate a decision.
29. However, as Lord Reed explained at [19]:

"19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann)."

30. These principles apply equally to the application of national planning policy, both by planning authorities and Inspectors.
31. An Inspector's report and a Secretary of State's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
32. Two citations from the authorities listed above are of particular relevance to the disputed issues in this case.

a) South Somerset District Council, per Hoffmann LJ at 84:

"...as Forbes J. said in City of Westminster v Haymarket Publishing Ltd:

"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph"

The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning ... Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

b) Clarke Homes, per Sir Thomas Bingham MR at 271-2:

"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

33. The standard of reasons required by a planning decision-maker was authoritatively set out by Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953:

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

The benefits of the proposed scheme

34. The Inspector found that the scheme would achieve very substantial public benefits, at a local and regional level, which provided very strong justification for the Order (R.599). The Secretaries of State agreed with his assessment.
35. The Scheme will comprise an elevated chord linking the Bolton Lines railway, on the existing Castlefield Manchester South Junction and Altrincham Railway viaduct near the Castlefield Centre, with the Chat Moss Lines railway, on the existing Middlewood Liverpool and Manchester Railway viaduct near Salford Central Station.
36. The chord is intended to be an integral part of the "Northern Hub" strategy for improved transport in the north of England, and consequent economic growth. It will provide a new direct rail link between the three main stations in Manchester (Victoria, Oxford Road and Piccadilly), linking the two main rail corridors. Trains will be able to run through Victoria Station and the current "bottleneck" at Piccadilly Station will be relieved, thus improving capacity and reducing congestion.
37. Manchester City Council and Salford City Council anticipate economic regeneration in the vicinity of the three main stations, and also at Salford Central Station which is set to become the nearest rail station to Manchester's business district.

The harm to heritage assets

38. The Inspector and the Secretaries of State found that the Scheme would cause substantial harm to heritage assets. Indeed, this point was conceded by NR.
39. Historic England (formerly English Heritage) objected to the threat of substantial harm to the heritage assets, explaining in its closing submissions:

"2.…there are around 30 heritage assets along the route of the proposed Chord, including three Grade 1 listed buildings. The buildings of the former Liverpool Road station and its related structures, which lie at the heart of the scheme, were constructed for the opening of the Liverpool & Manchester Railway, the first passenger railway in the world. Successive bridges and viaducts associated with the station bear witness to the rapid development of the railways and the emergence of this country's incomparable industrial and transport heritage. English Heritage does not hesitate in any way in describing this collection of buildings and structures as a cradle of the modern industrial world. It is of the highest heritage significance, of not just national, but international value.

3. The listings recognised the great evidential, historical, aesthetic and communal value in this unique group of station structures: the original station buildings, including the Station Master's house and the 1830 Warehouse, are listed in Grade 1, as is Stephenson's Bridge. The Water Street Bridge and the 1830 Viaduct, which linked the station with Stephenson's Bridge, are listed Grade II. So too are the Girder Bridge and Zig-Zag Viaduct, along with the Colonnaded Viaduct and the main building and Power Hall of the Museum of Science and Industry, and the buildings at 123 and 125 Liverpool Road. The Grade II listed Castlefield Viaduct, built as part of the railways expansion, which followed the opening of the station, lies to the south. This assemblage tells the story of how this station served as a blueprint for all other railway development which followed. It is not overstating the position to say that this is one of the most significant railway sites in the world."

40. The Inspector's conclusions on the harm to heritage assets were as follows:

"709. The Order scheme would involve the demolition of two listed structures, the Girder Bridge and the Cast Iron Bridge. The proposal would on its face be in conflict with the statutory duty to have special regard to the desirability of preserving listed buildings and their settings…. …

711. There can be no doubt about the outstanding importance of the group of buildings at the nucleus of the affected area, comprising Liverpool Road Station, the 1830 Warehouse, the 1830 Viaduct and Stephenson's Bridge, as a cradle of passenger rail travel. Many of the surrounding buildings affected by the Order scheme, including the Castlefield Viaduct and its bridges, the Middlewood Viaduct, the Zig Zag Viaduct, the Colonnaded Viaduct and the other buildings on the MOSI site bear strong witness to the rapid development of the railway in the mid-nineteenth century…

712. The area's national, and indeed international, significance is accepted by all parties, as reflected by the Grade I listing of the three principal buildings. Contrary to Network Rail's claim, list information is published and publicly accessible. But I would agree with Network Rail that comparisons with world monuments such as Stonehenge or the Pyramids, are difficult to sustain. The complex has not been enrolled as a world heritage site and has apparently lacked, at least up to now, the iconic status to grasp widespread recognition…

713. I would also agree with Network Rail that the unique significance of the site is very much invested in the three Grade I buildings and their linking structures. While the latter have been somewhat adapted over time, the original core identity of the group remains clear. The other buildings and structures on the site may have great evidential and historical value, but form part of a much wider pattern of expansion of the railway. For example, the MOSI Power Hall and Main Building belong to the station's changed role to handle goods traffic. It is not clear that they form part of a blueprint of the later development of passenger stations, in the same way as the first station buildings. These other buildings do not in my view have quite the same extremely high level of significance as the principal group….

…

Physical impacts

715. The assessment of direct impacts on ten listed structures is largely agreed by English Heritage. I endorse the judgments of substantial harm through the loss of the two bridges, and of no harm to the significance of the Central Railway and Southern Railway Viaducts at Salford Central Station. I support English Heritage's view that the works to the 1830 Viaduct, involving the imposition of the new structure across the viaduct with the loss of fabric at track level, would amount to substantial harm to the viaduct's significance as the linking element for the original lines between Stephenson's Bridge and Water Street. I note that the Heritage assessment seems to reach the same conclusion. Similarly, the loss of the Zig Zag Viaduct's connection with the Girder Bridge, and the alteration of its western end, also affecting part of the early Arrivals Station, would amount to substantial harm…..

…

Setting impacts

718. The issue of the effects on setting is less clear-cut. The statutory duty turns on the desirability of preserving setting. In this instance, the ensemble of original and later rail buildings and structures centred on Liverpool Road Station and the houses and hotel opposite, forms a grouping of extremely high interest, whose preservation is highly desirable. The imposition of the new chord would not preserve the setting of any of these listed buildings.

719. This would be particularly obvious at the key location identified by English Heritage at the junction of Liverpool Road and Water Street, where the linear relationship of Stephenson's Bridge, the 1830 Viaduct and Liverpool Road Station can be clearly appreciated. This viewpoint would undoubtedly benefit from on-site interpretation and permanent openness, but little weight should be given to Network Rail's effort to downplay its importance… The new chord would form a highly intrusive element, seriously disrupting the appreciation of the original relationships. But the chord would be similar in scale to existing structures. Although it would come closer to the station buildings, it would not dominate them, as feared by English Heritage....

720. From the station platform, the other key location from which original relationships can be readily appreciated, it is considerably more difficult to identify the different historic elements. In my opinion, the uninformed observer would be reliant on interpretation, perhaps more comprehensive than that currently provided, to fully understand the components of the view, which include the now electrified Bolton line. But the key point is that it can be clearly appreciated that the station lies at the end of a rail line, which can be seen to join the mainline network. The new chord would starkly cut across this view at very close quarters and alter that key perception….

721. The adverse effect on the historic setting of the former station, viaduct and bridges would not be confined to the visual impact of the new construction and the visual and aural impacts of bringing modern trains across at very regular intervals. Stephenson's Bridge would be left isolated, without an active use, and the lines within MOSI would come to an abrupt end. The loss of the rail link would, as well expressed by the Castlefield Forum and others, go to the heart of the site's identity. Whilst numbers of visiting trains have been low in recent years, the inability to bring trains in in future, even for key commemorations, would be a significant loss….

…

725. Network Rail's assessment of impacts identifies harm to setting, but without always explicitly analysing the contribution of setting to significance. This is relevant because substantial harm to significance is advised by the PPG to be a high test likely to involve serious impact on a key element of an asset's special architectural or historic interest…As the great majority of a heritage asset's significance will normally lie in the building or structure itself, development affecting only its setting may not often result in substantial harm.

726. However, in this instance, I consider that the significance of the three Grade I structures and of the 1830 Viaduct is strongly influenced by their mutual relationship. For the reasons set out above, I agree with Network Rail and English Heritage that the impact on their setting by the imposition of the new chord structure would be substantially harmful to their significance. The lack of major physical harm to Grade I structures would not diminish the overall harm. Because of their similar mutual relationship, I agree with English Heritage that the removal of the Girder Bridge would cause substantial harm to the significance of the Zig Zag Viaduct, which would not be mitigated by the retention of part of the structure itself….

727. But I would not agree with their assessment of substantial harm to the setting of the MOSI Power Hall and Main Building. As outlined above, I consider that the significance of these buildings is not as intimately dependent on the rail link to be severed as is the original group's. The issue is one of historic relationship rather than physical distance….

…

Conservation area

730. The individual design of the network arch could draw some support from the adopted Castlefield CA statement, which acknowledges the scope for diversity of design in the area. However, the adverse effects on individual listed buildings and their settings outlined above arising from the alignment of the proposed chord would also be substantially harmful to the character and appearance of this part of the CA, which are strongly influenced by the railway heritage…

731. As a particular example, the replacement of the Cast Iron Bridge would result in the loss of an impressive structure that forms a gateway to the southern approach along Water Street and whose opposite face enlivens the junction of Liverpool Road and Water Street. The bridge derives its character from the lightness and curved form of its ribbed structure, which contrasts with the weight of the adjoining viaduct masonry. While the treatment of the proposed widening of the viaduct would be quite sympathetic to this massive character, the proposed bridge design would have little of the contrast or lightness of the existing. I recognise that the proposal has a difficult task in seeking to provide a consistent treatment to two closely adjoining bridges with different spans and settings, but the solution would adversely affect the character of the CA….

…

Conclusion on heritage impacts

737. It is tempting, as advocated by Network Rail, to view the Order scheme as merely the addition of another layer of railway development, in a context already well endowed with railway infrastructure. Certainly, if harm must be caused to railway heritage, it may be more palatable for it to arise from provision that should improve the effectiveness of the railway network, rather than, say, from the building of a new road. But the impact of the disruption on historic relationships of acknowledged importance would take the proposal some way beyond the realm of an organic incremental extension of the existing network….

738. The cumulative substantial harm to heritage value is not disputed. The proposal would not align with the statutory duties set by s.66 and s.72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the guidance of the NPPF on the desirability of conserving heritage assets, and would conflict with MCS Policy EN15 and with SUDP Policies ST15, CH1, CH2, CH3 and CH4."

Option 15

41. Option 15 would run across Middlewood Locks, Salford, to the west of the proposed Scheme, resulting in a reduction in the harm to heritage assets which would be caused by the Scheme. Initially NR was informed by the Department of Transport that the site had been earmarked for the new High Speed Two (HS2) Manchester station and so NR did not consider it. However, the new HS2 station has been re-located to Manchester Piccadilly Station. The Claimant subsequently invited NR to re-consider Option 15. NR conducted an assessment and its expert concluded that it was "a technically viable but compromised option, with major defects, increased maintenance costs and performance risks to the extent that Network Rail views this option as an unacceptable solution".
42. Salford City Council opposed Option 15 on the grounds that the large Middlewood Locks site was now poised for a commercial and residential redevelopment, which would assist in the economic and social regeneration of Salford. The railway line proposed under Option 15 would be detrimental to its development because it would sever and compartmentalise the site and reduce the space available for development.
43. There were various iterations of Option 15, but the Inquiry focussed upon the Claimant's "Rationalised Option 15" produced in March 2014.
44. The Inspector concluded that Option 15 was capable of delivering the Ordsall Chord and would result in lesser harm to heritage assets than the Scheme. It had disadvantages in relation to engineering issues, cost and rail travel disruption. The decisive factor was its adverse effect on the development of Middlewood Locks and thus the regeneration of Salford. In the Inspector's view, the adverse effects outweighed the advantages, and meant that it could not be considered to be an appropriate alternative site (at R.696).
45. The Secretaries of State agreed with the Inspector's conclusions on Option 15.

Whether the substantial public benefits outweighed the substantial harm to the heritage assets

46. The Inspector concluded that, because of the scale of the benefits that would be released across Greater Manchester and the North of England by the Ordsall Chord, the harm to the heritage assets would be outweighed by the public benefits, and a clear and convincing justification for the Order had been provided (R.880). The Secretaries of State agreed with the Inspector's conclusion.

Discussion and conclusions

47. Because of the overlap between the Claimant's three grounds, I prefer to deal with them together.
48. The application of the duties under section 66(1) and 72(1) of the PLBCAA 1990 has been considered in a number of important cases which were reviewed by the Court of Appeal in Barnwell Manor Wind Energy Limited v East Northamptonshire District Council & Ors [2014] EWCA Civ 137, in which Sullivan LJ reached the following conclusions:

"16. What was Parliament's intention in imposing both the section 66 duty and the parallel duty under section 72(1) of the Listed Buildings Act to pay "special attention … to the desirability of preserving or enhancing the character or appearance" of conservation areas? It is common ground that, despite the slight difference in the wording, the nature of the duty is the same under both enactments. It is also common ground that "preserving" in both enactments means doing no harm: see South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141, per Lord Bridge at page 150.

…..

29. I agree with Lang J's conclusion that Parliament's intention in enacting section 66(1) was that decision-makers should give "considerable importance and weight" to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. I also agree with her conclusion that the Inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. He appears to have treated the less than substantial harm to the setting of the listed buildings, including Lyveden New Bield, as a less than substantial objection to the grant of planning permission. The Appellant's Skeleton Argument effectively conceded as much in contending that the weight to be given to this factor was, subject only to irrationality, entirely a matter for the Inspector's planning judgment. In his oral submissions Mr. Nardell contended that the Inspector had given considerable weight to this factor, but he was unable to point to any particular passage in the decision letter which supported this contention, and there is a marked contrast between the "significant weight" which the Inspector expressly gave in paragraph 85 of the decision letter to the renewable energy considerations in favour of the proposal having regard to the policy advice in PPS22, and the manner in which he approached the section 66(1) duty. It is true that the Inspector set out the duty in paragraph 17 of the decision letter, but at no stage in the decision letter did he expressly acknowledge the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings. This is a fatal flaw in the decision even if grounds 2 and 3 are not made out."

49. I consider that the same principles apply to the determination of an application for listed building consent under section 16 of the PLBCAA 1990 which is in almost identical terms to section 66(1).
50. The NPPF gives effect to these statutory duties, and it is considerably more prescriptive. In this case, the assets at risk were designated heritage assets (some were Grade I listed and so of the "highest significance") and they were threatened with "substantial harm or total loss". Therefore they attracted the highest level of protection afforded by the NPPF. Although the focus of the argument before me has been on the test in paragraph 133, I emphasise that the decision-maker has to apply both paragraphs 132 and 133 throughout the decision-making process.
51. In summary, the relevant policy criteria under paragraphs 132 and 133 are these:

i) Great weight should be given to the asset's conservation; the more important the asset, the greater the weight (132).

ii) Any harm or loss should require clear and convincing justification (132).

iii) Substantial harm to or loss of designated heritage assets of the highest significance should be wholly exceptional (132).

iv) Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, planning authorities should refuse consent unless the applicant can demonstrate that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss. (The other criteria in paragraph 133 do not apply in this particular case).

52. In my judgment, the word "necessary" in paragraph 133 was intended to have its ordinary meaning of "needed" or "required", which is the definition in the Oxford English Dictionary. I consider that this high threshold is consistent with the presumption against granting consent, and the policy that such harm or loss should be "wholly exceptional". Moreover, the policy carefully differentiates between the high threshold required under paragraphs 132 and 133 (for the highest level of harm to the most significant assets), and the lower thresholds set out in paragraph 134 (where there is less than substantial harm) and in paragraph 135 (where the heritage assets are not designated). It seems to me that the choice of the term "necessary" was considered and deliberate.
53. At the Inquiry, and before me, reliance was placed on the Practice Guide for Planning Policy Statement 5 ("PPS5"). PPS5 was superseded by the NPPF in March 2012. In June 2012, English Heritage published a revision note at the front of the Practice Guide advising that as the policies in the NPPF were similar to those in PPS5, the Practice Guide remained relevant and useful.
54. Policy HE9 in PPS5 contained near identical wording to paragraphs 132 and 133 of the NPPF:

"HE9.1 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost, heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset should require clear and convincing justification. Substantial harm to or loss of a Grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, including … grade I and II* listed buildings … should be wholly exceptional.

HE9.2 Where the application will lead to substantial harm to or total loss of significance local planning authorities should refuse consent unless it can be demonstrated that:

1. the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that harm or loss.

2. ……"

55. The only relevant paragraph in the Practice Guide was paragraph 91, which states:

"91. Where substantial harm to, or total loss of, the asset's significance is proposed a case can be made on the grounds that it is necessary to allow a proposal that offers substantial public benefits. For the loss to be necessary there will be no other reasonable means of delivering similar public benefits, for example, through design or development of an appropriate alternative site."

56. In my view, the Practice Guide was offering an example of a relevant consideration when deciding whether or not the harm/loss was "necessary", namely, whether or not there was an appropriate alternative site available. It seems most unlikely that the authors of the Practice Guide were intending to dilute the test of "necessity" in HE9.2 or to suggest that decision-makers could or should bypass the presumption in favour of conservation and the "wholly exceptional" requirement in HE9.1.
57. It is common ground that, in this case, the decision-makers rightly considered alternatives, even though they had not been put forward for consideration by NR, in order to decide whether or not the Scheme was "necessary to achieve substantial public benefits" within the meaning of paragraph 133 of the NPPF, or whether the public benefits of a railway link could be met via an alternative route. As Lindblom J said in R (Forge Field Society) v Sevenoaks DC [2015] JPL 22, at [59], the statutory presumption in favour of preservation of heritage assets implies the need for a suitably rigorous assessment of potential alternatives.
58. It is obvious that, in considering an alternative route, the first question had to be whether or not it was technically feasible i.e. could it deliver the public benefits sought from the new rail link. If not, it would have to be eliminated at that stage. However, if it was technically feasible, I cannot accept the Claimant's submission that it would inevitably follow that the Scheme was not "necessary", within the meaning of paragraph 133, because an alternative route existed. It seems to me to be unduly restrictive and artificial to confine the assessment of what development is "necessary to achieve substantial public benefits" to the issue of technical feasibility only, to the exclusion of all other factors. Such an interpretation could produce results which would be at odds with the NPPF policy. For example, an alternative scheme might be technically feasible but pass through an historic town centre, thus harming a different set of heritage assets, and also businesses and homes. The harm thus caused by the alternative route ought surely to be relevant to the consideration of whether or not the Scheme was "necessary". Such a restrictive interpretation could also render the "public benefits exception" unworkable, since if there were two technically feasible schemes, it would never be possible for the applicant to establish that either was "necessary". For these reasons, I reject the Claimant's Ground 1.
59. In my view, the decision-maker had to consider whether or not the Scheme was indeed necessary to achieve the substantial public benefit of the rail link by assessing the advantages and disadvantages of the alternative route. The decision-maker could not properly conduct this exercise in a vacuum, without applying the correct criteria. In making his assessment, he had to:

i) apply the statutory tests in the PLBCAA 1990, by giving considerable importance and weight to the desirability of preserving the buildings or their setting, and to the desirability of preserving or enhancing the character or appearance of the conservation area; and

ii) apply the guidance in paragraphs 132 and 133 of the NPPF, summarised at paragraph 51 of my judgment.

60. On my reading of the Inspector's Report, he did apply both the statutory tests and the NPPF guidance when considering the alternative route.
61. At R.602 – 610, the Inspector correctly directed himself on to the relevant provisions of the PLBCAA 1990, and policy on the conservation of heritage assets in the NPPF and the local development plans.
62. The Inspector's approach to the consideration of Option 15 was set out at R.633 & 634:

"633. It is argued on behalf of Mark Whitby that the Order scheme's harm to heritage assets would not be necessary because the Option 15 alignment would be technically feasible and the harm to the development potential of Middlewood Locks has not been made out. But the judgment to be made is not a straightforward balance of harm to Middlewood Locks against the substantial benefits of an Ordsall Chord, which might be the case if Option 15 were before the Secretaries of State. Option 15 is not before the Secretaries of State because the promoters have rejected it. The issue is whether it would provide a "reasonable alternative to the Order scheme and would be on an "appropriate alternative site"…"

"634. In reaching a judgment, the matter is not merely a comparison of the heritage impacts of the two alternatives. In my view it does not follow that substantial harm to heritage assets on an application site should necessarily justify substantial harm to other interests on an alternative site. The test is one of reasonableness. The relevant PPS5 guidance relates specifically to cases of substantial harm or total loss of significance. Clearly, as substantial harm to heritage assets of the highest significance should be "wholly exceptional", the necessity for such harm must be rigorously tested. Paragraph 132 of the NPPF advises that the more important the asset, the greater the weight should be given to its conservation. This is consistent with the judgment in Barnwell Manor, where the Court of Appeal held that the "…general duty (imposed by s.66 of the Act) applies with particular force if harm would be caused to the setting of a Grade 1 listed building, a designated heritage asset of the highest significance." However, the need for "an exceptional degree of justification" of the case for necessity does not appear in national guidance…"

63. These paragraphs do not, in my view, disclose any error of law. The Inspector clearly had well in mind the statutory duties in the PLBCAA 1990 and the NPPF criteria in paragraphs 132 and 133. Although he applied a "reasonableness" test, as set out in the Practice Guidance, he recognised that it was subject to the overall policy requirement that "substantial harm to heritage assets of the highest significance should be "wholly exceptional"" and "the necessity for such harm must be rigorously tested" (emphasis added).
64. I also consider that he was correct in principle in distinguishing the approach which he would have taken under the NPPF if the application had been made in respect of Option 15. That would have required a balancing exercise between the harm to Middlewood Locks and the substantial public benefits of the Ordsall Chord, under paragraph 133. Here, consideration of Option 15 only arose in the context of whether or not the Scheme was necessary to achieve the substantial public benefits of the Ordsall Chord, which required consideration of potential alternative routes. This is the answer to the Claimant's Ground 3.
65. As the Claimant correctly submits, a decision-maker is required to demonstrate that the statutory duties under the PLBCAA 1990 have in fact been applied, not merely rehearsed (see Barnwell Manor (supra) per Sullivan LJ at [29]; Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303, per Stocker LJ at 1322). I consider that the Report does demonstrate that the Inspector did in fact apply the statutory and policy tests.
66. At the outset of his examination of Option 15, the Inspector considered the 'Heritage Impacts', accepting that "Option 15 would have a less harmful effect on heritage assets and their setting than the Order proposal" (R.631) and the potential harm of Option 15 to the heritage assets could be less than assessed by NR (R.632).
67. The Inspector noted that NR accepted that Option 15 "could be made to work in operational and technical terms" (R.664) and went on to analyse the concerns raised by NR. He concluded:

"681. Taken overall, it appears that Network Rail may be taking too pessimistic a view of the risk associated with Option 15…. Whilst acknowledging that some inherently inferior design aspects and unresolved risks count against it, I find that it has not been shown that technical/engineering matters alone should prevent Option 15 being regarded as a reasonable alternative to the Order scheme."

68. Thus, the Inspector did find that Option 15 could produce the substantial benefits of the rail link, and with less harm to heritage assets than the Scheme. These factors were then weighed in the balance.
69. The Inspector went on to analyse the higher costs of Option 15. He recorded English Heritage's submission that the cost had to be seen in the light of the significant harm to heritage assets. The Inspector concluded that "if cost were the only factor, given the anticipated exceptional benefits and the quality of the heritage assets at risk of harm, the additional costs could be seen as reasonable" (R.691).
70. The Inspector's conclusions were set out in paragraphs 696 & 697:

"696. I conclude on the balance of the evidence that Option 15 would be capable of delivering the outputs required for the Ordsall Chord, subject to the resolution of some outstanding engineering issues, none of which appears likely to be insurmountable, and subject to considerably higher costs and disruption to rail travel. If these were the only issues weighing against this alternative, it would be difficult to conclude that the harmful heritage impacts of the Order proposal were absolutely necessary. However, when these aspects are taken together with the development of the Middlewood Locks site, which would have serious consequences for the regeneration of Central Salford, both in the immediate and longer term, the balance is clearly against Middlewood Locks being seen as an appropriate alternative site. The issue is broader than whether the substantial public benefits of the Ordsall Chord could be secured with acknowledged lesser harm to heritage significance.

697. Option 15 provides an elegant and quite persuasive diagram, but examination of the real implications of trying to deliver the proposed route shows that it would be likely to have significant adverse effects, for which no satisfactory resolution was before the Inquiry. Therefore it would not in my judgment provide a reasonable alternative to the Order scheme."

71. In my judgment, the repeated references to the harm to the heritage assets demonstrate that the Inspector was giving "considerable importance and weight" to the desirability of preserving the heritage assets, as required by the PLBCAA 1990. In R.696, he demonstrated that he was applying the correct test under the NPPF in considering whether the harm to the heritage assets was "necessary". Taken together with the earlier references at R.602 – 610 and R.633 & 634, I conclude that the Inspector did demonstrably apply the correct tests in this section of his Report. Therefore I reject the Claimant's Grounds 2 and 3.
72. In his 'Overall Conclusions', the Inspector stated that "[t]he case turns on the issue of heritage, and … the test set by the guidance of paragraph 133 of the NPPF" (R.873). He repeated his earlier finding that the harm to the heritage assets would be very great (R.874), but applying the test under paragraph 133, Option 15 would not amount to a reasonable means of achieving the public benefits (R.875). I accept that R.875 only refers to the reasonable alternative test and not the PLBCAA 1990 and NPPF paragraphs 132 & 133, but on a fair reading of the Report, this paragraph ought to be read in conjunction with the two preceding paragraphs (R.873 & R.874) and the earlier section of the Report on Option 15.
73. I consider that the Claimant's reasons challenge is unarguable. This was a very detailed and careful Report and the Inspector's reasoning is quite clear. In my judgment, the reasoning meets the required standard as set out in Porter (No. 2).
74. The SST, in his decision letter of 25 March 2015, agreed with the Inspector's conclusions and recommendations. The key paragraphs on Option 15 were as follows:

"9….The Secretary of State, nevertheless, accepts like the Inspector … that the scheme would cause the substantial harm to listed buildings in the vicinity and their setting, and to the character and appearance of the Castlefield conservation area…In coming to a decision on this application he has given considerable weight to these matters, having regard to the duties under section 66 and 72 of the [PLBCAA 1990] which, while not directly applicable to a TWA Order determination or the giving of directions as to deemed planning permission, are reflected in the NPPF and development plan policies aimed at protecting the historic environment."

….

"11. The Secretary of State has considered the Inspector's detailed comparison at IR628-695 of the scheme as submitted by NR and the Option 15 alternative …He notes in this regard that it was not disputed that Option 15 would have a less harmful effect on heritage assets and their setting than NR's proposals (IR631). The Secretary of State agrees with the Inspector, however, that the key issue in deciding whether the scheme satisfies the test in paragraphs 132 and 133 of the NPPF is whether the substantial harm or loss to heritage assets that would result from the scheme is necessary to achieve substantial benefits which outweigh that harm or loss. He agrees further that, in assessing whether such harm or loss is necessary, the particular issue in this case is whether Option 15 would provide a reasonable alternative to NR's proposals on an appropriate alternative site (IR633-634)."

….

"14….he is satisfied that, taking these considerations with the likely significant adverse effects of Option 15 on the regeneration of Central Salford, Option 15 is not a reasonable alternative to NR's proposals and that Middlewood Locks is not an appropriate alternative site for the new chord railway …"

75. In my judgment, these paragraphs show that the SST correctly directed himself on the appropriate statutory and policy tests to apply. He accepted and adopted the detailed assessment carried out by the Inspector, together with the Inspector's conclusions, which I have found to be lawful. The decision letter does not disclose any error of law. Its reasoning, together with the cross-references to the Inspector's Report, meets the required standard as set out in Porter (No. 2).
76. The SSCLG, in his decision letters, simply agreed with the Inspector's Report and added nothing. As I have found the Inspector's Report to be lawful, there can be no basis for a challenge to the SSCLG's decisions.
77. In conclusion, although I acknowledge that these were controversial decisions, with which the Claimant, Historic England and no doubt many others disagree, I am not satisfied that they disclose any error of law, for the reasons I have set out above. The merits of planning judgments cannot be reviewed in High Court challenges; only errors of law.
78. The claim for judicial review was arguable, and so I grant permission, but dismiss all three claims.