The Enterprise and Regulatory Reform Bill 2012 has passed its Commons stages and has had Second Reading in the Lords. It includes important heritage reforms arising out of the Penfold Review.

Clauses 52 to 55 and schedule 17 of the Bill would make amendments to planning and historic environment legislation1. These changes would only apply in England.

Abolition of conservation area consent

Conservation area consent (CAC) is to be abolished and its controls replicated in the planning system. CAC had long been criticised and the widening of planning control over demolition by the Court of Appeal in R(SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government was the final nail in its coffin. The proposals contain the following steps:

  1. Confining the need for conservation area consent under section 74 of the Listed Buildings Act to Wales;
  2. Making it a criminal offence to carry out relevant demolition without planning permission (proposed section 196A(1), Town and Country Planning Act 1990). Relevant demolition is the demolition of a building in a conservation area which is not excluded by section 75 of the Listed Buildings Act or a direction made under it (listed buildings, scheduled monuments and certain small buildings);
  3. The health and safety exception in section 9 of the Listed Buildings Act is applied to this provision (so replicating the present situation under conservation area consent);
  4. As planning permission is presently required for such demolition, the local planning authority has the usual range of enforcement provisions available to it. English Heritage would be given power to prosecute or seek a planning injunction in respect of relevant demolition;
  5. A new ground of appeal against an enforcement notice would apply for relevant demolition which was urgently necessary in the interests of health and safety;
  6. There would be no time limit for taking enforcement action against relevant demolition2 (mirroring the current unlimited time for acting against conservation area consent breaches).

For these provisions to be effective, permitted development rights for relevant demolition would have to be removed from Part 31 of the Town and Country Planning (General Permitted Development) Order 1995. It would be prudent to exclude all ‘relevant demolition’ from the GPDO by an amendment to its Article 3. Some transitional provision will also need to be made to allow relevant demolition to proceed under existing conservation area consents.

Listing

The Bill proposes to enable a listing to be narrowed by the list providing that:3

  1. any object or structure fixed to the building or any pre-1948 curtilage structure is not to be treated as part of the building for listing purposes;
  2. that any part or feature of the building is not of special architectural or historic interest.

The rationale for the exclusion of objects or structures fixed to the building is unclear. If the object does not contribute to the special architectural or historic interest of the building then that would be able to be specified in the list description under the second element of the proposals. If it does contribute then there is no obvious reason for excluding it from the list. The proposal only deals with the exclusion of objects which are fixed to the building and cannot determine that a particular object is not part of the building, an important issue for works of art.

The ability to exclude curtilage structures which are part of the land is useful as listed building consent may be required for the demolition of a qualifying curtilage structure irrespective of its importance.

Determining that a part or feature of the building is not of special interest would mean that removing or altering that part does not require listed building consent.

These changes would only apply to buildings which are listed or entries amended after the coming into force of the provisions.4 Consequently they cannot be used to re-interpret existing list descriptions.

Certificates of immunity from listing

Certificates of immunity from listing would be able to be granted without a planning application or planning permission for the alteration, extension or demolition of the building.5

Heritage partnership agreements

Heritage partnership agreements could be agreed between the local planning authority and the owner of a building or part of a building (proposed sections 26A and 26B, Listed Buildings Act). Other parties may be the Secretary of State, English Heritage, other local planning authorities, persons interested in, occupying or involved with managing the building and any other person with special knowledge of the building or listed buildings more generally.

Such agreements must be in writing and provide for periodic review, termination and variation. Consultation, publicity and the terms of any agreement may be specified in regulations by the Secretary of State.

A heritage partnership agreement may grant listed building consent, with or without conditions. Such a listed building consent will run with the land. Requirements for consultation and publicity in the regulations will be of particular importance if listed building consent is to be granted.

Heritage partnership agreements may also specify works which do not require consent, provide for works to be done and deal with public access and funding.

Listed Building Consent Orders

The Bill also proposes to introduce listed building control orders which will grant consent for certain works subject to any specified conditions. These orders will operate either at a national level, made by the Secretary of State, or locally and made by the local planning authority.6 These are therefore equivalent to the General Permitted Development Order and local development orders.

Lawful works certificates

Proposed section 26H of the Listed Buildings Act would introduce certificates of lawful works for listed buildings which might cover proposed works or those which have been carried out. This would be a useful reform. A problem for persons carrying out works to listed buildings has been knowing whether consent was required. That was often resolved in an informal but non-binding way with the local planning authority. A weakness with the current proposals is that they do not apply to works which have already been carried out. The reason is to avoid encouraging the carrying out of works first and application second. But these issues usually arise after works have been carried out and the absence of a formal mechanism for resolving the issue would be regrettable. A further matter is whether the certificate would cover actions which are too modest to be works, but might be contentious, such as removing some paintings.

This article is adapted Richard Harwood’s ‘Historic Environment Law’, published by the Institute of Art and Law: www.ial.uk.com