Blackpool Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Anor

Where a development causes less than substantial but more than de minimis harm to a designated heritage asset, the decision-maker must weigh that harm against the proposal’s public benefits, including any optimum viable use. The harm must receive considerable importance and weight, and the asset’s conservation must receive great weight. The relative modesty of the harm does not justify giving it correspondingly modest weight. A planning inspector must engage with the relevant heritage policies and explain the evaluation sufficiently to show that the statutory duties were applied. Conditions cannot remove inherent harm caused by reducing significant floor space or disturbing historic features that cannot remain in their existing position.

The claimant council challenged an inspector’s decision allowing planning permission and listed building consent for alterations to, and residential development behind, a Grade II listed former synagogue in Blackpool. The challenge was brought under section 288 of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The council alleged failures to apply the heritage policies in Part 12 of the National Planning Policy Framework, the duty under section 66(1) of the 1990 Listed Buildings Act, the requirement to address Historic England’s objections, and the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004. The central issue was whether the inspector had given the required weight to harm arising from reducing the prayer hall and moving significant stained glass windows.

1. The claim succeeded. The inspector’s decision was quashed. The Secretary of State was ordered to pay the council’s summarily assessed costs of £10,551.50.
2. The court accepted the common-ground propositions that the relevant NPPF provisions were material considerations; that preserving a listed building’s setting and features means doing no harm; that the assessment of harm is ordinarily a matter of planning judgment; and that harm to a listed building attracts considerable importance and weight. The reasons must be intelligible and adequate. A decision-maker need not cite every policy by name, but must address the principal controversial issues and demonstrate that relevant policies have been understood and applied.
3. This was a case of less than substantial, but more than de minimis, harm. The proposed reduction in the prayer hall and displacement of historic stained glass windows necessarily caused harm. The inspector therefore had to conduct the balancing exercise required by paragraph 134 of the NPPF, weighing that harm against the public benefits and the prospect of securing optimum viable use. On a fair reading, he did conduct that exercise.
4. However, the inspector treated the harm as relatively slight and consequently gave it relatively slight weight. That was legally erroneous. The required weight is not reduced merely because the degree of harm is modest. The inspector also treated the original 1916 floor area as the relevant benchmark, despite the building having been listed in its later form, and treated the possible relocation of the windows as largely immaterial.
5. The conclusion that the harm could be controlled by conditions was unsustainable. Conditions could not preserve the existing floor area or keep the stained glass windows in situ. The inspector had therefore failed to give the harm considerable importance and weight and had failed to give the conservation of the synagogue great weight.

The inspector allowed the developer’s planning appeal and granted planning permission and listed building consent, subject to conditions. The High Court allowed the council’s statutory challenge and quashed that decision.