[2025] UKUT 312 (LC)

The relevant parts of the statutory development plan concerning design and heritage issues are policies PG3, GA1.1, and TP27 of the BDP, to which we have already referred, together with saved policy 3.14 of the 2005 Birmingham Unitary Development Plan.

Saved policy 3.14 is concerned with the design of new development and, at 3.14B, it requires a demonstration that development proposals have been considered as part of their context. A design statement identifying the principles adopted for the proposal is mandatory for all but the smallest schemes, and to avoid “problems of piecemeal and incremental development on very large development sites” there is an expectation that comprehensive master plans or development briefs will be prepared.

Under saved policy 3.14D, new development is to be assessed against a list of good urban design principles. Particular regard is to be had to the impact of proposed development on the local character of an area, including topography, street patterns, building lines, boundary treatments, views, skylines, open spaces and landscape, scale and massing, and neighbouring uses; the scale and design of new buildings and spaces should generally respect the area surrounding them and should reinforce and evolve positive local characteristics; people should be able to move freely, easily and safely throughout the City; and mixed uses will be encouraged in centres, and in other areas where they can contribute towards meeting an identified local need.

High quality design is an express requirement of the BDP (policies PG3, GA1.1, TP27 and saved policy 3.14), and proposals are required to respond to the local context (PG3, and 3.14). Scale and design should generally respect the surrounding area and contribute to a strong sense of place (3.14D, PG3, and TP27). New development should reinforce or create local distinctiveness, with design that responds to site conditions and the local context, including heritage assets (3.14).

Quintain’s proposal gave rise to disagreement between the design experts, Mr Townsend and Mr King, concerning the scale and massing of the proposed development along Moor Street Queensway. The specific issues to be considered are the height of the proposed tall buildings, whether a cluster of tall buildings is justified, and the visual impact of the indicative design.

The design experts agree that the northern part of the Appeal Site, whether north or south of Seymour Street, is in principle an appropriate location for a tall building, meaning one of at least 15 storeys. Quintain’s application includes a tower of 32 storeys (including the podium) to the south of Seymour Street, while the Secretary of State’s design incorporates one of 24 storeys on Block A. There was also agreement that the proposed scale of Blocks A, B2 and B3 was acceptable, having regard to the existing context including the neighbouring tall buildings to the north and the open space on the eastern side of Park Street.

The parties disagree about the number and permissible height of the towers proposed as part of Block B1 and more generally about the visual impact and impermeability of the Moor Street Queensway frontage of this block. For the Secretary of State, Mr King considered that the tall elements stepping up along Moor Street Queensway were unjustified and would conceal the sky and create a “wall-like barrier” which would have the effect of obstructing movement towards Eastside by acting as a physical and visual block. This would render the area less permeable for pedestrians, cyclists, and vehicles and impeded the development of a more interconnected, vibrant, and accessible urban environment, contrary to the place making ambitions of BDP Policy PG3. The cluster of three tall buildings proposed for Block B1 would, in his opinion, create an over-dominance in their surrounding context with the tallest being double the height of its Eastside neighbours at Masshouse and The Emporium. He contrasted this with the Secretary of State’s alternative proposal, which features a single tall building, which in Mr King’s view achieved the desired waymarking objective without appearing dominant or overbearing.

Mr King produced visualisations of a tall building on the corner of Moor Street Queensway and Seymour Street of 16, 18, 24 and 30 storeys as seen from the Aston Expressway, the Priory Queensway, and from Swans Passage. He accepted that he had not visualised a building of between 24 and 30 storeys, and was therefore unable to say that 24 storeys, as the Secretary of State proposed, was the maximum height that would be acceptable to a reasonable planning authority.

In Mr Townsend’s view, Mr King’s visualisations demonstrated that a 24 storey building would be of similar scale to others surrounding it and so would fail to perform a waymarking function; from the Aston Expressway, 24 storeys failed to stand out, and from Swans Passage it would largely be concealed. From the generously wide Priory Queensway, Mr Townsend considered that a 30-storey option would not be overbearing and would integrate positively into the surrounding context, creating a skyline with visual interest and distinction. From distant viewpoints, the development would be central to an emerging tall buildings cluster at the eastern edge of the city core, including Exchange Square, Masshouse, the Emporium, and Beorma Tower.

Mr Townsend considered Eastside to have unique locational characteristics, mediating the transition between the city quarters of Eastside, Digbeth, and the City Core. He accepted that at the valuation date, within Eastside itself, tall buildings were of 15 or 16 storeys, with no precedent for anything higher. The design and access statement supporting the CAAD application did not designate a wayfinding function to anything other than the single tall tower, but he provided two examples of ‘tower triplets’, one at Thames City in the Nine Elms area of London, the other at Infinity Waters in Liverpool which he said illustrated how clusters of buildings could successfully perform that function. He acknowledged that these examples were of buildings in areas specifically designated for tall buildings and were bespoke to their context; in neither example were the buildings linked by a ‘shoulder’ and in each case the buildings in the cluster were “grounded” in the sense that they rose from ground level rather than being positioned on a podium linking them to surrounding structures.

Mr Townsend suggested that each of the proposed towers would be grounded, as features of the detailed design would emphasise that the intermediate blocks were between the towers, rather than the towers sitting on top of one large block. The design was intended to be ‘read’ as a collection of buildings, increasing in height from Moor Street Station, creating a distinctive skyline making the edge of the city core legible, and marking a key transport interchange. In his view the three towers gave a rhythm to the façade and their ascending scale was designed to draw the eye, marking the Seymour Street junction’s importance as a key location. He countered Mr King’s objections by suggesting that, rather than being a ‘wall’ of development, the mass of Block B2 was broken up into a series of well-proportioned elements with sky visibility between them. The separation distances between the towers was substantial, and while acute views along the street may exclude visible sky between the buildings, that impression would be momentary, as gaps would open up as the viewer moved eastwards. He considered that the eight-storey shoulder block would be in keeping with the surrounding enclosure within Moor Street Queensway and would help to create a sense of enclosure rather than having gaps between each of the buildings.

Although we are considering the application afresh, we note that scale and massing were the subject of extensive discussions between Quintain and the Council’s planning officers. The officer’s report to the planning committee regarded the Moor Street frontage as the logical location for the tallest element of the proposed scheme, reflecting the importance of the street and its proximity to the City Centre core where the highest concentration of tall structures is found. The officer’s assessed the views of the tall buildings from relevant conservation areas and considered that the maximum scale of Block B would not cause substantial harm to designated heritage assets. Their overall conclusion was that the tall buildings would provide a positive addition to the city core as part of a corridor including the 27 and 30 storey towers at Exchange Square and Beorma. They were also seen as representative of the growth of the city core to the east, where intermediate tall buildings of 15 and 19 storeys were already complete or under development.

We agree that the Appeal Site is a gateway location, from both Eastside and Digbeth and its position is within a stone’s throw of one of the approximate locations identified as suitable for tall buildings in Map 4 of the High Places SPG. It is fitting that the junction of Seymour Street and Moor Street Queensway should be marked by a building of appropriate city scale. This principle is common ground and is reflected in the Secretary of State’s agreement that a building of 24 storeys would be justified. The real issue is not height alone, but the scale of the proposed development and whether the cumulative effect of the various elements of Block B1 would create an overbearing presence along Moor Street Queensway. The scale of the development on Block B is not a discrete issue but is linked to other contentious features of Quintain’s proposal. To create sufficient separation space between the various elements it has been necessary to adjust the historic street pattern to accommodate the Moor Street Queensway frontage of Block B1, with consequences for the setting of heritage assets and residential amenity.

Standing at 217.4 AOD, some 98 metres above ground level, the proposed 32 storey tower would be unprecedented in this location and, we consider, inconsistent with the general gradation of tall buildings along the City Centre ridge which, since the Big City Plan and the High Places SPG, have generally been assumed would increase in height moving east to west. Such a building would be distinctly taller than phase 1 of Exchange Square (27 storeys) which, because of its location closer to the City Centre core, we would expect to be the more prominent building (as it would be in the Secretary of State’s alternative scheme). Quintain’s building would be about double the height of its close neighbours, Masshouse, The Hive and The Emporium. We took careful note of Beorma (30 storeys) when we undertook our own inspection and concluded that, although it can be seen as part of a corridor of tall buildings entering the city centre, it is not as relevant a comparator. It is remote from the northern end of the Appeal Site which is agreed to be the logical position for the tallest structure and it is also in Digbeth, rather than Eastside, and performs a different waymarking function.

The 32-storey tower would therefore be out of keeping with its immediate context. It would also be novel in the context of what had been previously consented within Eastside. Consented buildings there were generally below the threshold for tall buildings and there were fewer significant points of arrival or destination where taller structures might have been anticipated. The notable exception, Eastside Locks (19 storeys), marks the eastern end of university area. The proximity of the Appeal Site to the city centre is a justification for a tall building in this location but the scale of that building or buildings should recognise that this is a transitional site where Eastside begins and different relationships should be respected.

More significant than the height of the tallest element proposed, and perhaps the most distinctive feature of Block B1, is its trio of towers. A case can be made for the lowest of these (which at 12 storeys is not really a tall building) because it performs a useful function in defining the corner of Freeman Street and Moor Street. But the central tower, at 22 storeys including its podium, has no such functional justification and is incongruously positioned halfway along a city block. It performs no waymarking function of its own, as Mr Townsend agreed, and the benefits which he considered it brought either duplicate or detract from those achieved by its taller neighbour. The approach to Eastside along Seymour Street and Freeman Street is announced by the towers at either end of Block B1 and the addition of a third risks introducing confusion and appears to us to erode legibility.

Having visited the Appeal Site and viewed it from the vantage points suggested to us by the parties we share Mr King’s concern about the visual impression Block B1 would create and its general impermeability. Its western façade would be 96 metres long. Although activated at ground level by retail space, ranging across the skyline would be a tower of 32 storeys connected by an 8-storey shoulder to its neighbour of 20 storeys, terminating with a further 12 storey building. The effect from ground level would be akin to a portion of a high city wall, shielding the City Centre from Eastside and concealing what lies beyond. That appears to us to be the consequence of the scale of the development and in particular the link between the two tallest elements. Mr Townsend explained that the design was intended to promote a sense of enclosure but in the absence of views or routes through the centre of Block B that sense of enclosure is in tension with the wider objective of expanding the City Centre into Eastside and improving connectivity.

For these reasons, and in respectful disagreement with the Officers’ report, we do not think that in design terms Quintain’s proposal would represent a positive addition to the city centre or that it can properly be described as a well-designed development. It does not generally respect the surrounding area, which is one of the good design principles recognised in save policy 3.14B and does not measure up well to the emphasis in BDP Policy PG3 on creating an interconnected, vibrant, and accessible urban environment. This is obviously a matter of judgment on which views may differ, but our own assessment is broadly consistent with Mr King’s on this key issue. Although in certain respects Mr King’s report offered Mr Elvin KC the opportunity to collect some easy points in cross examination, none of these caused us to doubt that he had a thorough understanding of the Appeal Site and its context. Mr Townsend takes a different view and is no less well qualified than Mr King. Having been commissioned by Quintain in 2018 to develop scheme designs for submission to the Council and having then been involved in extensive discussions with planning officers to secure their support, Mr Townsend was ideally placed to explain the design principles underlying the CAAD proposals. But his long involvement meant, in effect, that he was giving evidence in support of his own design, and we bear that in mind in considering where we think the balance of the assessment rests.

We have considered whether, by lowering the largest tower, or by lowering or removing the 8-storey component of the western frontage of Block B1, some of the issues we have identified could be overcome. But the evidence did not consider an intermediate position between 24 and 32 storeys and any modification of the scale of the frontage to improve permeability would involve a fundamental adjustment to the design and would introduce issues which the parties have not had an opportunity to consider. This is a much more complex scheme than in some other CAAD appeals where the Tribunal has felt able, on the evidence, to describe a form of development which lies between the positions of the two parties. It is not possible for us to adopt that approach here.

Historically, the Appeal Site was divided into three urban blocks by Seymour Street and Freeman Street, each linking Moor Street to the west with Park Street to the east, as part of a grid of streets. From Freeman Street it was possible to cross Moor Street and continue directly to the City Centre along New Meeting Street. But Freeman Street was stopped up at its western end in the 1970s to facilitate the City fathers’ concrete collar, creating a cul-de-sac at a level 1.8m below Moor Street Queensway.

Until its demolition after the valuation date the Fox and Grapes public house, one of two listed buildings in the area, stood at the eastern end of Freeman Street, on the corner of Park Street. It is believed to have dated from the late 17^th century, and its statutory Grade II listing was based on the building’s age and cultural significance rather than on any particular architectural merit. It was derelict at the valuation date, having suffered a series of arson attacks. None of the other buildings on Freeman Street or Park Street remained, so the pub stood alone on the corner, the last remnant of a former landscape which existed before the area became a surface level car park. Both parties’ CAAD schemes envisage the pub being refurbished and brought back into use as part of the redevelopment of the Appeal Site and significant weight is given to its revival in the overall planning balance.

Unlike the extant 2008 Permission Quintain’s proposals would divert Freeman Street from its historic alignment, perpendicular to Moor Street Queensway and Park Street, and would create a dog-legged ‘New Freeman Street’ running diagonally across the Appeal Site. Mr Townsend explained that this would help to integrate the Appeal Site with the existing street network and promote movement towards Eastside. In his view, it offered a number of urban design benefits over the historic alignment of Freeman Street. The new route aligns with a nodal point on Moor Street Queensway opposite Carrs Lane, the principal pedestrian route to the High Street retail area and beyond to Colmore Row and the central business district. It intersects with routes to Moor Street Station and New Street Station to the south and Jennens Road to the north. Mr Townsend therefore considered that the proposed route followed a clear and legible pedestrian desire line from the retail core through to City Park and Eastside beyond. He suggested that it offered an uninterrupted view towards the green space of City Park and so provided a welcoming arrival to Eastside.

Mr King objected to the proposed layout on the grounds that it disrupted the historic grain of the site by enlarging the central block and breaking the connection between the street pattern that had existed since the 18^th century and the corner position of the listed pub. In these respects it was inconsistent with the emphasis in saved policy 3.14B on responding to local context and paying particular regard to impacts on street patterns, building lines and heritage assets.

Mr Williams KC suggested that the proposed scheme and the Secretary of State’s alternative were not significantly different for pedestrians. At the eastern end, both schemes have a pedestrian route adjoining the pub. At the western end, both schemes have to resolve the level change (as did the 2007 permission) by emerging within about 10m of each other. He therefore suggested that Quintain’s design was disrespectful of local character and street patterns for little benefit.

Historically Freeman Street had not linked Moor Street with Eastside since the arrival of the railway which caused it to terminate at the railway cutting leading to Moor Street Station. On our site visit, the significant change in level between New Meeting Street and Queensway was also apparent, and Carrs Lane now provides the more convenient route to the City Centre. We therefore accept Mr Townsend’s point that the historic street pattern is no longer well connected to the wider street network, having been interrupted by the railway at one end and by the raising of Moor Street Queensway at the other and we see force in his views on pedestrian routes. We also think that the respect due to a historic street pattern must be tempered when that pattern had already been almost obliterated, and the topography permanently altered. The change in levels also creates a practical difficulty for any design based on the retention of the original route of Freeman Street. The level difference of some 6m would require a ramp steeper than 1 in 16 or some other treatment. The 2007 permission had steps at the western end, which was unsatisfactory for disabled pedestrians and itself involved a departure from the historic position. By running diagonally across the Appeal Site Quintain’s proposal extends the distance over which the difference in levels is resolved and is more accessible. Although it sacrifices the remnants of the historic grid it is a satisfactory response to the difficulties created by the level changes introduced in the 1970s.

Each scheme creates an area of open space around the refurbished Fox and Grapes pub, the main difference being that Quintain’s design produces a triangular plot as New Freeman Street splits into two branches on either side of the pub whereas the Secretary of State’s alternative hints at the building’s original corner position by placing it in a rectangular open space. Mr King criticised the layout of Quintain’s scheme as creating pinch points, resulting in awkward junctions. We are not persuaded that is a valid criticism as the distance between the pub and the surrounding buildings is at least adequate and not far short of the 12.3m in the Secretary of State’s version. The Council’s officers were content with the arrangement; they described the space between Blocks B and C as “generous” and thought that the 19-20m dogleg opening out around the Fox and Grapes provided an improved setting for the listed building.

One adverse consequence of the realignment of Freeman Street is the contribution it makes to blocking views towards Eastside from Moor Street Queensway, thereby contributing to the adverse impact on connectivity and accessibility created by the massing of Block B. The 2008 Permission retained the historic street alignment while adding a new diagonal route across the site, forming a new public square on Moor Street and opening up the approach to Eastside. This approach has been abandoned in favour of maximising the scale of development. The proposed opening of Freeman Street onto Moor Street has been relocated in order to lengthen the façade of Block B1 and provide space for the three towers which sit on top of it. The new opening necessitates the introduction of the dogleg in place of the historic straight route to accommodate Block C, and although the new route is wide the change of direction restricts views from Moor Street towards Park Street and contributes to the overall sense of enclosure and separation. This is only partially relieved as one moves along Freeman Street because the view terminates at the Fox and Grapes which is now central and spans much of the new route before it reaches Park Street. Therefore, while we do not place the same weight as Mr King on the loss of the historic street pattern and recognise the benefit which the proposed route of Freeman Street would yield, the change also contributes to the adverse consequences of the decision to maximise the scale of Block B which is the key design issue.

It is convenient to refer at this point to the evidence given by the experts on heritage, Mr Coleman and Mrs Jones, about the impact of Quintain’s proposal on the setting of the Fox and Grapes. There was much common ground between them, including that development of the Appeal Site will in principle produce heritage benefits, by regenerating the local townscape and enhancing the setting of the pub, and by optimising the use of the listed building by returning it to its intended function as a pub.

The historic alignment of Freeman Street is agreed to reflect an underlying wider street pattern in the area in which pubs on street corners were a common feature. It is also agreed that the relevant consideration is any harmful impact which the proposed development may have on the setting of the listed building and on the appreciation of its significance. The “setting” in this context means the surroundings in which a listed building or other heritage asset is experienced. The setting of a listed building is not in itself a heritage asset, and changes in setting are not necessarily harmful.

In this context we were reminded that under paragraphs 133 and 134 of the National Planning Policy Framework, harm to heritage assets is categorised as either “substantial”, or “less than substantial”, with the extent of heritage harm within the “less than substantial” category varying on a sliding scale. A four-step process of assessing harm is recommended in Historic England’s 2017 guidance document “the Setting of Heritage Assets”. These steps involve identifying the asset and its setting, assessing the degree to which the setting contributes to the significance of the asset, and assessing the effect of the proposed developments, whether beneficial or harmful, on that significance or the ability to appreciate it; and, finally, considering ways to maximise enhancement or minimise harm.

Mrs Jones considered that Quintain’s proposals were contrary to Policy 3.14D. The alignment of Freeman Street should respect the historic street pattern and the pub’s position on the corner, which she regarded as an important feature which should not be lost and which contributed to the understanding and appreciation of the building. She categorised the harm to the listed building as a result of changes to its setting caused by the proposed development as less than substantial harm, at the higher end of the scale.

Mr Coleman disagreed. The continued presence of the pub and its orientation to Park Street maintained the original Freeman Street/Park Street corner as a historical fact and sufficiently indicated the original street pattern to enable the significance of the building to be appreciated. Respect for the previous alignment only has a value to the extent that it preserves or enhances the setting of the pub and that would only be achieved if the development embraced the pub’s street wall (by which we understood Mr Coleman to mean that the setting would be improved by restoring the original continuous terrace along the street, which was not part of either proposal). In his view, Quintain’s proposal would not cause harm or impair appreciation of the significance of the pub, which lies in its position, history, and what remained of its fabric at the valuation date, and not in its setting. There was nothing to choose between the two suggested developments since each would leave the building detached from any neighbour and capable of being appreciated in isolation.

In our judgment, the demolition of the buildings around the pub changed its setting entirely and left only the faintest suggestion of its original corner position. The pub has lost its original context and any contribution which its setting might have made to an appreciation of its qualities has been rendered meaningless. Apart from the rerouting of Freeman Street the development itself would not harm the setting; Block B features a two-storey podium fronting Freeman Street which would lie behind the listed building when seen from Park Street and the scale of the proposed development along Freeman Street is relatively respectful. The aesthetic, evidential and historic value of the building has, as Mr Coleman suggests, been diminished by the fire damage. Any harm to the pub or its setting which Quintain’s proposal might cause would be negligible and at the lower end of less than substantial harm. In the absence of any proposals to rebuild Freeman Street and reattach the building to its neighbours, an indication of its position could be recreated and its setting enhanced by detailed landscaping proposals. We are also mindful of Mr Adams’ very fair acknowledgement that the benefits of restoring the fabric of the pub, providing public realm to form a new setting, and securing its future economic use, achieve the optimum viable use for the listed building and outweigh the less than substantial harm to its significance.

We were invited by Mr Williams KC to consider whether the Secretary of State’s alternative proposal would avoid or diminish the harm caused to the setting of the listed building. Having regard to R (Langley Park School for Girls) v Bromley LBC and the other authorities previously mentioned the general principle is that alternative sites or alternative forms of development on the subject site are normally irrelevant, although exceptionally that may change if the degree of harm merits a different approach. Given the different view we take from Mrs Jones about the extent of any harm, we do not think there is any reason to make an exception to the general rule. The net effect of Quintain’s proposals on the Fox and Grapes would be positive. In any event, because Freeman Street is wider under the Secretary of State’s proposal than it would formerly have been it also changes the relationship of the listed building to its historic surroundings. We are not persuaded that the alternative proposal is less harmful than Quintain’s scheme.

In summary, therefore, when the street layout proposed by Quintain is divorced from wider considerations around the scale of Block B1, we do not consider it represents an additional obstacle to the approval of its scheme as appropriate alternative development. Any very minor effect of the setting of the Fox and Grapes is significantly outweighed by the planning benefits of bringing the pub back into repair and use.

As can be seen from the site plan, Quintain proposes two office buildings at the southern end of the Appeal Site, Blocks C1 and C2, of eight and nine storeys respectively. The parties disagree on the harm which the proposal would cause to the setting of the historic portion of Moor Street Station, which was Grade II listed in 1998.

The Moor Street Station building lies immediately to the south of the Appeal Site and is the terminus for services from London Marylebone. Built in 1911 in what Mr Coleman described as a ‘restrained baroque style’ it has an attractive brick and stone front elevation with six rather elegant, curved gables which can currently be appreciated against the skyline. Mr Coleman described the station as modest in size and expression, and somewhat overwhelmed by the adjoining Selfridges and Primark buildings, neither of which are at all sympathetic. At the valuation date, the Primark building was being converted from the former Pavilions shopping centre and was shrouded behind scaffolding.

It is common ground that neither Quintain’s scheme nor the Secretary of State’s alternative proposals would have a harmful effect on the station itself; as with the Fox and Grapes, the disagreement concerns the impact of the proposals on the setting of the listed building.

Mr Coleman considered that Quintain’s proposals would cause no harm to the significance of the listed station. The station is discrete; much of its significance is only appreciated from within the building and what occurs beyond it is relatively unimportant. Until the 1960s the station building immediately adjoined a much taller warehouse building and it would have been designed with that expectation.

In Mrs Jones’s judgment, the station building has a degree of prominence in the streetscape; while its profile is relatively low, the gabled front elevation helps to mark the station’s presence as a destination. In her view the proposed changes to the station’s setting would cause less than substantial harm, at the middle of the scale.

Mr Townsend pointed out that the proposed new office blocks would be only two storeys taller than the Primark and Selfridges buildings opposite, which already form the dense urban setting for the station. The façade of Block C1 would be 50 metres from the historic portion of the station’s frontage (further away than Selfridges), avoiding an overpowering impact on the listed building. Mr King disagreed. He thought the proposed massing, particularly along the southern edge facing the station, clearly read as more imposing and less responsive to the site’s heritage and immediate context than the Secretary of State’s scheme which envisages a single building with portions of 5, 7 and 9 storeys.

The CAAD proposals must also be considered in the context of the extant consent under the 2008 reserved matters approval. In general, Quintain’s current scheme is a little more modest than the development which could still be implemented on Block C. Block C1, facing the station, is proposed to be 2.7m lower than the consented scheme, with a facing façade some 2.3m shorter. The extant consent envisages a single building with an unbroken elevation of 94m facing the station along Paternoster Row (which originally ran between Park Street and Moor Street but would now simply provide access to the rear of Block C). Quintain’s current proposal splits Block C into two elements with 60m and 25m façades. The other significant difference between the consented and proposed schemes, and the only respect in which the consented development may have been less intrusive, is that on the consented design the upper levels of the building were stepped back, away from the station.

The 2006 officer’s report leading to the grant of the extant permission provides little assistance. The station is simply noted as an adjoining use, rather than as a heritage asset, and it was not referred to in consultation responses by either English Heritage or the Council’s own Conservation and Heritage Panel. It might be legitimate to assume that neither consultee considered that the development then proposed would have an adverse effect on the station. The 2008 section 73 permission provided an opportunity for second thoughts by officers, but again the station was simply referred to as a neighbour and described as “refurbished” rather than listed. Mrs Jones pointed out that the extant permission pre-dated the concept of harm to the significance of designated heritage assets, which she said had been introduction in the 2012 NPPF. But the station was listed by that point and, as Mrs Jones accepted, planning authorities were already under an obligation imposed by section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to assess the impact of development on listed buildings and to preserve them.

A third opportunity for the station to attract attention was provided by the Conservation Area and Character Appraisal for the adjoining Digbeth conservation area, adopted as an SPD in March 2009. This discussed the station but placed no weight on its townscape character. The authors reserved their appreciation for the Selfridges building and seemed to value the station as a counterpoint, rather than for its own merits: “the architectural character and traditional scale of the station buildings provide a vivid contrast to the shopping mall development beyond the conservation area boundary to the south and west”. That suggests that the author of the appraisal did not regard the setting of the station as contributing much to its significance.

When they reported to the Council on Quintain’s CAAD application, officers explained that had the application been for planning permission heritage bodies would have been consulted but pointed out that there is no legislative basis for equivalent consultation under the CAAD regime. They were therefore alive to the listed status of the station. They advised that Block C was broadly consistent with the previous consent and would not have any additional impact on heritage assets in the vicinity. They considered that the proposals would have a “satisfactory relationship with the surrounding buildings and railway infrastructure.”

On this issue we take the same view as the Council’s officers and Quintain’s experts. The proposed design is not stepped back, as the extant development was, but from our site visit we noted in particular the significant separation between the listed portion of the station and Block C, which would be 20m greater than the distance between the station and Selfridges. Although the front of the station is attractive, the relative prominence of its gables is a result of the clearance of neighbouring development and their current appearance against the skyline cannot be regarded as making a significant contribution to the station’s heritage significance. The officers’ assessment is consistent with the absence of expressions of concern on previous occasions, which we think is unlikely to have been due either to a failure by officers and consultees to appreciate that the station was listed or to their assessment having been undertaken under the different framework which prevailed at that time. On the evidence as a whole, we consider that no harm will be caused to the setting of the station by Quintain’s proposals. It is therefore unnecessary to consider whether the Secretary of State’s alternative proposals would cause less harm.

A number of more specific objections were raised by Mr King, the Secretary of State’s design expert, regarding the standard of amenity which Quintain’s proposals would deliver, especially for residential occupiers. He suggested, in particular, that the quality of the private open space provided for the amenity of residential occupiers and the provision of daylight to north-facing apartments were not acceptable. These issues arose from the design of Block’s B and C, with enclosed areas said to be overshadowed by the surrounding structures, and tall buildings oriented approximately east-west so that their longer façades face north.

The requirement under the NPPF for development to provide a good standard of amenity is supplemented by Policy PG3, which requires private external spaces to be attractive and functional and Policy TP27 requiring attractive amenity space, and the promotion of high-quality public space which encourages its use. PG3 makes no specific reference to daylight or shadowing. TP27 deals with sustainable neighbourhoods, in which context the development would be adjacent to a new public park. There is no policy requirement for public open space to be provided for PBSA, hotel or office uses.

Mr King also considered that both the enclosed central space on top of the two-storey podium intended as private open space and the area along Freeman Street and around the Fox and Grapes which is designated public open space were likely to be overshadowed by the height of the surrounding buildings, in direct contrast to policy PG3. He produced an illustrative view at podium level, looking north into the central private area from a position between two of the higher elements of Block B. This persuasively made the case that most of the central area would be overshadowed at times, a proposition with which Mr Townsend did not disagree, but we did not find it a particularly objective exercise. In particular, it did not balance the image with a view of the remainder of the open space behind the viewer, which would have been free of overshadowing at the same time. It is clear that there would be overshadowing of some of the private open space and that at certain times the area affected would be relatively large, but there was no evidence of how much daylight different spaces would receive throughout the year to enable a balanced judgment to be reached at this stage. The officers’ report took the view that the taller elements of the scheme could achieve satisfactory separation to provide privacy, outlook and light penetration and we can see no reason to reach a more pessimistic conclusion, particularly as considerations would be given at the detailed design stage to the desirability of residential blocks having balconies. We also bear in mind, as did officers, that significant public amenity space would be available close by in Park Street Gardens and Eastside Park.

The other matter about which Mr King expressed concern was the proportion of residential units within Quintain’s proposed development which were oriented with northern and southern aspects; he suggested the long north-facing façades would cause a lack of daylight and an uncomfortable indoor environment. This concern was not supported by any technical analysis.

In response, Mr Townsend pointed out that at the valuation date there was no policy requirement for any quantified level of daylight to reach habitable rooms and therefore no policy basis for Mr King’s criticism. Additionally, the availability of daylight to habitable areas does not depend on direct sunlight alone; the ‘vertical sky component’, meaning the amount of sky visible to someone standing at a window, is one of the primary methods of assessing light levels within residential spaces. By that measure, Mr Townsend suggested, 75% of the flats in the development would receive sufficient light to achieve a high-quality living environment. The proposed blocks were not truly north facing but were 13^o off a strictly east-west axis so that north-facing elevations would receive some morning sunlight, particularly in summer months.

In the absence of any technical analysis measuring the access of daylight to the proposed development, we are strongly inclined to follow the example of the Council’s officers, who were content with the indicative internal layouts they were shown and who expressed no concern on the basis of residential amenity. Measures to ensure satisfactory levels of daylight, for instance by the placement of living rooms, lift cores, stairwells etc, can be considered at the detailed design stage. We are not persuaded that the current proposals are non-compliant or that planning permission ought to be refused for reasons relating to residential amenity.