New Year’s Resolutions

1. I will be nice to Uncle Eric (who is a Truly Wonderful Human Being), and I will not make comparisons between him and Other Things, or make references to his....er....size.

2. I will freely acknowledge the Unquestionable Wisdom of our great Coalition Government in all that it does in relation to everything, and will not pour cold water on any of their proposals in relation to the economy, or town planning or anything else (because We Are All In This Together, and There Is No Alternative).

3. I will be nice about all politicians at all levels, who strive ceaselessly for the public good without any regard to their own interests or the interests of their friends in the City, and are worth every penny of the salaries and expenses they are paid; and I will give proper recognition to their unrivalled technical knowledge and expertise in every subject they have to deal with, especially Town & Country Planning.

4. I will cheerfully accept the imperative need to cut jobs and services in town planning and across all our public services as savagely as possible (so as to demonstrate to international financiers that this is a country that recognises their unbounded power and influence in the world).

5. Finally, I will not use irony, sarcasm or other low forms of humour in this blog ever again.

(Oops! I seem to have broken that last resolution already. Oh, well. Who cares about New Year’s Resolutions anyway?)

Happy New Year to all my readers.

© MARTIN H GOODALL

Curtilage confusion (2)

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).


I frustrated several readers of my last piece on this topic by stopping short of discussing the actual definition of the ‘curtilage’ of a dwellinghouse (or other building). So now at last we come to that definition and its significance in planning terms. As I mentioned before, there is no such thing in planning law as ‘use as residential curtilage’. This is not a use in planning terms; it is simply a physical description of an area of land which is closely associated with a house (or other building). The use of a property for residential purposes (within Use Class C3) relates to the whole of the planning unit comprising the house and its grounds. The ‘curtilage’, as I mentioned before, may very well be a smaller area, the use of which in planning terms does not differ materially from the use of the planning unit as a whole.

The dictionary definition is helpful to a certain extent [“a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings” - OED], but does not give the whole answer. I usually take as my starting point a quotation from Sinclair-Lockhart’s Trustees v. Central Land Board (1950) 1 P&CR 195, where it was held that: “The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

A later case which has often been cited is Dyer v. Dorset County Council [1989 1 QB 346, in which the Court of Appeal adopted the dictionary definition mentioned above, but this decision of the court of Appeal can no longer be relied upon. For one thing, the case was not being decided in the context of planning law, but was concerned with the ‘right to buy’ under housing legislation. More importantly, the use of the word “small” in the dictionary definition is misleading, and was held to be irrelevant by the Court of Appeal in Skerritts of Nottingham Ltd v. SSETR [2000] 2 PLR 102; [2000] JPL 1025, who decided that Dyer had gone too far in adopting the dictionary definition word for word.

Beyond this, there is not much further judicial help in reaching a definition. It is, to use a favourite phrase of planning lawyers, “a matter of fact and degree” in each individual case, and this was the principal point established by Skerritts of Nottingham. You have to look at all the circumstances in the particular case in question.

One practical point which can clearly be derived both from decided cases in the courts and from inspectors’ appeal decisions is that if something like a tennis court or a swimming pool is separated from the house by an area of rough grass or is situated in a field or paddock which is clearly not part of the formal garden closer to the house, then it is very unlikely to be seen as falling within the curtilage of the house. (For examples of this, see Collins v. SSE [1989] PLR 30 and McAlpine v. SSE [1994] EGCS 189. In Collins the area of rough grass was held not to be part of the curtilage because it did not serve the dwellinghouse in some necessary or useful manner, echoing the words used in Sinclair-Lockhart’s Trustees).

The significance of ‘curtilage’ in planning terms arises from the use of the word in both primary and subordinate legislation. We have already seen that the use of land or outbuildings within the curtilage of a dwellinghouse, which is mentioned in s.55(2)(d), is no longer of any relevance, as the inclusion of dwellinghouses in Use Class C3 in the Use Classes Order brings the whole planning unit (not just the curtilage) within the terms of s.55(2)(f). However, ‘curtilage’ is still important in other contexts. I do not propose to explore every use of the word in the planning legislation, but will just mention the two most important references to the term. The first is in Part 1 of the Second Schedule to the General Permitted Development Order, and the second is in section 1(5)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

Permitted development within Part 1 in the GPDO (and in particular under Class E) can only be carried out within the ‘curtilage’ of a dwellinghouse, and not within any part of the planning unit which lies outside the curtilage. As regards the Listed Buildings Act, the inclusion of a building in the statutory list of buildings of architectural or historic interest embraces not only the building itself, but also any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land [within the curtilage] and has done so since before July 1, 1948. Thus in these two cases, it is important to define the curtilage in order to determine the effect of these statutory provisions to particular parts of the property.

© MARTIN H GOODALL

Still busy

I decided a week or so ago that I would try to publish three posts in this blog each week. Well, so much for good intentions. Such has been the pressure of work recently that I only managed one post last week.

I will try to publish posts more frequently in future, but the fact remains that priority has to be given to client work, and this shows no signs of letting up. Needless to say, I am not complaining. Whenever I contemplate the sheer silliness of the planning system at times, I console myself with the thought that it all makes work for the working man to do!

© MARTIN H GOODALL

Challenging an Enforcement Notice - Nullity as a defence

After I wrote the two previous pieces on questioning the validity of enforcement notices published here on 20 April and 8 September this year, it occurred to me to revisit R v. Wicks to refresh my memory as to what the Court had actually decided in that case. This led me on to look at Palacegate Properties Ltd v. Camden LBC [2000] PLR 59 (CA). If the Planning Encyclopedia is to be believed, a court trying an alleged offence under s.179 has no power to inquire into the validity of an enforcement notice on grounds of “nullity”, but that is not what that case decided. The Court did not say that the nullity of the enforcement notice cannot be raised as a defence to a prosecution for non-compliance with the notice, but it did restrict the definition of ‘nullity’ to a very narrow compass.

The EN would be a nullity if the person issuing it had no authority to do so. Thus there must have been a resolution of the Council or of a committee or subcommittee exercising a power duly delegated to that committee or subcommittee under the Council’s standing orders or scheme of delegation, or it must have been issued by an officer acting under a power duly delegated to a specified officer under the Council’s standing orders or scheme of delegation. Note, however, that the Courts have shown some flexibility in this regard and are content that the EN should have been issued in the name of the officer having the delegated power to issue it, even if that officer did not personally sign it. Only if some junior officer had gone off on a frolic of their own and was acting entirely outside the scope of their authorised sphere of action could it be argued that the notice was a nullity. Moreover, if the person issuing the EN has ostensible authority to do so, issues such as bad faith, bias, etc. cannot make the notice a nullity. These might make the notice voidable if challenged either on appeal under s.174 or by way of an application for judicial review, but the EN cannot be treated as a nullity on these grounds.

The only other basis on which an EN can be a nullity is if some vital element required by statute to be included in the notice is missing from the notice. It is not sufficient to argue that the notice is void for uncertainty; it has to be so fundamentally defective as not be a notice at all. The statutory requirements are set out in s.173 and in regulations made under s.173(10), in Part 2 of the Town & Country Planning (Enforcement Notices and Appeals)(England) Regulationss 2002. It might be argued that some of these requirements are more important than others, and it is a moot point as to whether some minor omission in respect of the prescribed contents would be sufficient to render the notice a nullity, or whether a failure to include or serve with the notice the explanatory note prescribed by Reg 5 would be sufficient to render the notice a nullity. I would very much doubt that the latter would render the notice itself a nullity; that would most likely be seen as a procedural irregularity which could conceivably lead to the EN being quashed, but would be unlikely to render the notice a nullity as such.

This does perhaps leave open a question as to whether, if some element of the notice were to be so garbled as to be completely unintelligible, it might then be argued that there had been a failure to include the relevant element in the notice, thus rendering it a nullity. However, Malcolm Spence QC’s argument in Palacegate Properties that the EN in that case did not make sense even to an informed reader was rejected by the Court. I strongly suspect that the courts would be unsympathetic to such an argument on the basis of Wicks and Palacegate Properties, but there must surely be some threshold beyond which the relevant element in the notice is so hopelessly defective as not to comply with the statutory requirements at all. What, for example, if the same section of two unrelated ENs were accidentally transposed, so that in each case the relevant section in fact related to an entirely different site or to an entirely different and unrelated breach of planning control? Surely it could not be argued that because on the face of it the notice contained the relevant elements as required by statute, the notice could not therefore be a nullity, notwithstanding that it made no sense in the context of that notice?

What is nevertheless clear is that the scope for arguing that an Enforcement Notice is a complete nullity as a defence to a prosecution under s.179 is very restricted. So I hope no-one had false hopes raised by my earlier pieces on questioning the validity of an enforcement notice.

© MARTIN H GOODALL

The planning process

Readers will be aware that I frequently inveigh against the nonsenses of the planning system, and I know there are many other planning professionals who share my views. It is the development management process that is the biggest headache for developers and their advisers. In the majority of cases the outcome is successful from the developer’s point of view (subject to certain reservations about over-prescriptive conditions attached to planning permissions); but what bugs users of the system is the bureaucratic nightmare associated with submitting a planning application in the first place and getting it ‘registered’ by the LPA, with all the extra work and resulting delays which this involves.

Brian Waters (who is principal of the Boisot Waters Cohen Partnership, chairman of the National Planning Forum and immediate past-president of the Association of Consultant Architects) recently wrote an article on this topic in Architects’ Journal, although he stressed that he was writing strictly in a personal rather than a representative capacity. He observed that HM Treasury’s concerns about the drag on the economy due to our increasingly sclerotic planning system have been evident for years. They first emerged with the apparently uncommissioned McKinsey report in the late 1990s and have been reiterated at intervals since then.

Brian’s article continued: “Architects will know that since then things have got worse. A planning application used to be a four-page TP1, a location plan, certificates and some drawings. Now 1APP runs to 12 pages and a mountain of studies and statements for the most modest of proposals. As for policies, just as we got close to national coverage with Unitary Development Plans (UDP) and Local Plans, whoops, the introduction of a new planning act (2004) meant starting all over again with Frameworks, Core Strategies and the rest. Planning Policy Guidance (PPG) turned to Planning Policy Statements (PPS) as national policy got ever-more deterministic, spatial planning got lost in a fog and the long-standing ‘presumption in favour of development’ (vintage 1923) became swamped by ‘plan-led’ decisions with increasingly invasive conditions.

It is the process that needs tackling, not the policies. I predicted in a previous article in Architects’ Journal here that 1APP’s introduction would lead to a ‘train crash’. The Killian-Pretty review was set up to count the bodies and tried to get the system back on track, but the defensive stance of local planning authorities that demand vast wodges of information to cover every possible angle goes on.”

As regards the mountains of studies and statements which Brian mentions, an architect told me recently of some of the irrelevant material which he had been forced to submit to one LPA in order to get an application registered. It included a complex statistical study of some abstruse aspect of the development which the LPA insisted they must have. Whether deliberately or by mistake (I can’t remember which it was), the last 10 pages or so of this document, containing the essential analysis of the data and the conclusions to be drawn from this material, were not copied, thus rendering the document entirely meaningless. Nevertheless, this document was accepted as fulfilling the LPA’s requirements, and the application was registered, processed and determined without any question being raised about this document or its contents. Quite clearly no-one had read this lengthy and expensive study. Its production had in practice been completely unnecessary.

As I have observed before, I am convinced that much of the dissatisfaction about the planning system which has penetrated the consciousness of ministers, including the PM, stems from the actual process rather than from its outcomes. Further reform of the planning system should therefore be concentrated on two areas. The first is the simplification of the requirements associated with the submission of planning applications and the removal of the entirely unnecessary requirements which have been imposed on applicants in recent years. This would include abolishing Design & Access Statements, abolishing national and local validation checklists and restoring a right of appeal where an LPA is delaying determination of an application because of insistence on the provision of information which the applicant considers unnecessary. This would require the amendment of section 62 of the 1990 Act and of corresponding provisions in the DMPO, thus reversing the effect of the High Court judgment in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin). [For further details, see my posts on Wednesday, 5 May 2010 - “Validation dispute goes pear-shaped” - and Friday, 13 August 2010 - “A much-needed reform”]

The second area of reform relates to the development plan process. It is vastly over-complicated and needs to be greatly simplified. Repeal of section 38(6) of the 2004 Act would be a great help here, by removing much of the pressure which it and its predecessor (section 54A of the 1990 Act) has placed on the development plan system over the past 20 years. I have repeatedly pointed out that section 70(2) of the 1990 Act provides a perfectly sound basis for development management.

But will the government listen to us? After all, we are only the poor professionals who have to try to make the system work.

© MARTIN H GOODALL

Curtilage confusion

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).


The one topic which has received more page views than any other on this blog is the short article entitled “Curtilage Confusion” published in this blog on 11 January 2011. It has now been read more than 2,500 times. Clearly this issue is proving to be a serious problem for a large number of people.

As I have explained in several posts in the blog, the ‘curtilage’ of a house (or other building) is not necessarily co-extensive with the boundaries of the property on which the house stands. Where the house is located on a modest plot in an urban or suburban area, the domestic curtilage may well encompass the whole of the property, and I strongly suspect that this is what leads people to refer loosely (and inaccurately) to the whole of the land around their house as the ‘curtilage’. However, on larger plots in rural and semi-rural areas, the curtilage often proves to cover rather less than the whole of the property. It is in these circumstances that the inaccurate use of the word ‘curtilage’ begins to cause problems.

If we are dealing with a house occupied with a substantial area of surrounding land, there may be a need to establish - (a) whether the domestic use of certain parts of the property is lawful and (b) whether certain outbuildings, a swimming pool or ornamental ponds, tennis courts, etc. are Permitted Development within Part 1 of the General Permitted Development Order.

It is necessary to make a clear distinction between issues relating to the use of land and issues relating to operational development (i.e. building, engineering or other operations) involved in creating a building or other structure or facility, including (for example) a swimming pool or a tennis court. The rules relating to the lawfulness of the erection or creation of the building, structure or other facility differ in certain important respects from the rules relating to the lawfulness of their use, or (to be more precise) the lawfulness of the use of the land on which they are located.

It may come as a considerable surprise to some planning officers, but the lawfulness of the use for domestic purposes of various parts of the property surrounding a house is not dependent on the area or areas in question being within the ‘curtilage’ of the house.

The origins of the confusion which has clearly arisen can be traced back to what is now Section 55(2)(d) of the Town & Country Planning Act 1990, which provides that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” is not to be taken for the purposes of this Act to involve development of the land. Taken at face value, it might seem that this does confirm that, in order to be lawful, uses associated with a single private dwelling must be within the ‘curtilage’ and must be purely ‘incidental’ to the use of the house as a dwelling, but this is not so.

When the predecessor of s.55(2)(d) first went on the statute book (in 1947), single private dwellings were what lawyers call a sui generis use, i.e. a use of its own kind. However, that changed in 1987, when a new version of the Use Classes Order included ‘dwellinghouses’ for the first time. Since then, use as a dwellinghouse, whether or not as a sole or main residence, has come within Use Class C3.

It seems to have escaped the notice of quite a few planning professionals that the inclusion of dwellings in the Use Classes Order had an important knock-on effect. It brought dwellings within the provisions of what is now Section 55(2)(f) of the 1990 Act, which provides that “in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or other land, for any other purpose of the same class” is not to be taken for the purposes of this Act to involve development of the land. So in the case of a dwelling, which by definition comes within Use Class C3, it is lawful by virtue of s.55(2)(f) to use any part of the buildings or other land for any other purpose falling within Use Class C3, whether that purpose is primary, ancillary or incidental to the use of the house as a dwelling. This has effectively made s.55(2)(d) redundant, although it remains on the statute book because no-one has spotted the fact that it is of no further relevance.

There is just one point that needs to be clarified. What exactly counts as “any part of the buildings or other land” ? You won’t find the answer to this question anywhere in the planning legislation, but the courts have long since developed the concept of the ‘planning unit’, and the way in which the planning unit is to be defined is clearly set out in the judgment of Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.

This is a point which should be borne in mind when we are considering a house which is occupied with a large area of surrounding land. In these circumstances, it cannot automatically be assumed that the whole of the land falls within one and the same planning unit as the house. Some of the land could, for instance, be in agricultural use, or might be used for some other purpose. Thus the property might possibly include another planning unit which, in terms of the activities carried on there, is physically and functionally separate from the remainder of the property.

So how is a planning unit comprising a house and its grounds created, and how can it lawfully be enlarged to include extra land? If planning permission is sought for the erection of a new house, the red line on the site plan should be drawn round all the land which is intended to be used and occupied with the house. The land within the red line will be the planning unit, and the grant of planning permission for the erection of the house will necessarily authorise the use of all the land within the planning unit for the same purpose. Section 75 of the 1990 Act confirms this, and the effect of s.55(2)(f), as we have seen, is to allow the use of every part of the planning unit for any purpose falling within Use Class C3. If the planning permission is for a change of use (for example a barn conversion), the same considerations apply to the land shown in the planning permission (i.e. edged red on the approved site plan) as being part of one and the same planning unit.

The application drawings should therefore include within the red line on the site plan all the land which is intended to form part of one and the same planning unit as the house. Note that the planning unit may well be larger than the more tightly defined domestic ‘curtilage’. However, there must be some reasonable limit as to how much land can properly be included in the planning unit when a planning application is made. Being greedy about the amount of land to be included in the planning unit might lead to a refusal of planning permission altogether if it is felt that involves a change of use of too large an area of land to use for residential purposes.

The subsequent incorporation within the property of land which was outside the originally defined planning unit represents a material change in the use of that land (in many cases from use for agriculture) to use for domestic or residential purposes, but please note is does not represent a change of use to ‘use as residential curtilage’, even if it is close enough to the house to come within the curtilage, because this is not a use in planning terms. It is an enlargement of the planning unit and a material change of use of that land to use for residential purposes (or, possibly ‘to a use or uses ancillary to a residential use of the planning unit in which it has been incorporated’). Such a change of use requires planning permission, which most local planning authorities will be very reluctant to grant in most cases. However, if such a change of use takes place without planning permission and this unauthorised use continues without interruption for 10 years, then it will become immune from enforcement and therefore lawful. But please note that this does not have the effect of making that land part of the domestic ‘curtilage’ as such.

Following the inclusion of dwellinghouses in the Use Classes Order in 1987, as Use Class C3, the definition of the curtilage is no longer relevant to the lawfulness of the use of any particular part or parts of the planning unit, because this is now governed by section 55(2)(f) rather than by section 55(2)(d), as explained above.

However, it is when we come to the consideration of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order that the precise definition of the actual ‘curtilage’ of the house is of crucial importance, particularly in relation to Class E. The precise definition of the curtilage of a listed building is also important for the purposes of listed building control.

I will return in a future post to the question of how the precise extent of the curtilage can be determined.

© MARTIN H GOODALL

The chilling effect of CIL

Local planning authorities up and down the country are busy setting their charging schedules for the Community Infrastructure Levy and it is becoming clear that, at the level at which charges are being set in quite a few areas, the cost to developers will be large enough to deter them from going ahead with planned developments. It is possible that some authorities who wish to avoid having to accept significant levels of housing development in their areas would be quite happy to deter developers in this way.

I always expected that this attempt to tax development, like all the previous attempts (‘development charge’, ‘betterment levy’, ‘development land tax’, etc.), would have a seriously depressive effect on the market. The trouble is that, whilst financial contributions under section 106 agreements are negotiable, and developers can point out to an LPA the effect which a particular level of demanded contribution would have on the viability of the project to which that contribution is linked, the charge payable under the CIL regime will be a fixed percentage calculated solely by reference to the size of the development, and there will be no scope for negotiating a lower charging level by reason of the effect which the charge would have on the viability of the particular scheme. The result will be that developers will not even bother to apply for planning permission in many areas, and so urgently needed housing, including affordable housing, will simply not get built, nor will the money required for new or upgraded infrastructure in the district get the necessary funding.

The government is anxious to promote development as one means of stimulating the economy, and in the Chancellor’s Autumn Statement they have reiterated their intention to make early changes to the legislation to enable existing section 106 agreements to be renegotiated (or, if necessary, appealed) sooner than is currently possible, so as to obviate the current drag on development which over-ambitious financial obligations under those agreements had been causing. The Community Infrastructure Levy will have precisely the opposite effect to this liberalisation of the current regime. It will be entirely counter-productive and will act as a major brake on development. That may please the NIMBYs no end, but it will have a depressive effect on an already faltering economy.

It is somewhat surprising that the government decided to stick with CIL, when they had previously expressed an intention to abolish it. They correctly saw CIL as an undesirable tax on development, and predicted that it would have the deleterious effect on the market which is now beginning to emerge. At the risk of making yet another U-turn (although they should be getting used to that by now) the government should abolish CIL or, at the very least, suspend its implementation indefinitely.

The counter-argument which may well be heard if the abolition or suspension of CIL were to be seriously considered is that the levy is essential in order to fund the infrastructure for which new development creates a demand. But it is disingenuous to pretend that it is new development and, in particular, the construction of new homes which gives rise to the need for new or upgraded infrastructure. The new schools, roads and other facilities would still be needed even if the development did not occur. Household formation is continuing apace, the population is continuing to increase, and so the need for new school places, new roads, new community facilities and other public amenities will be there even if we do not build any more homes for these people to live in.

I strongly suspect that what led the present government to decide that CIL should be introduced after all was its overriding aim to cut public spending, and CIL was no doubt seen as one of the means of ensuring this, rather than having to fund local infrastructure through general taxation. Now that ‘Plan A’ has been seen to fail, and has in fact led to increased borrowing by government (to fund additional benefits for all the people the government has thrown out of work, and to replace lost tax revenue from the resulting economic downturn), what the country needs is a good dose of Keynesian economics – a New Deal which would include the funding of new schools, libraries and other community facilities from general taxation, rather than expecting an increasingly beleaguered development industry to pay for it.

© MARTIN H GOODALL

Proposed changes to Listed Building control

The government is proposing some important changes to simplify the system of listed building control. This is part of the implementation of the recommendations of the Penfold Review. The changes will require primary legislation, and so their introduction will be dependent on finding the necessary parliamentary time (so they are not imminent).

I have referred recently to the imaginary speech I wrote before the election delivered by ‘James Hacker’ [see “REAL Reform of the Planning System”, posted here on Tuesday, 20 April 2010]. This is yet another example of some of the ideas canvassed in that piece being put into practice. I had put the following words into the mouth of our imaginary Secretary of State:

“I also propose to relax the controls over alterations to listed buildings. Many owners and occupiers of listed buildings are under the impression either that the prohibition on altering a listed building without consent applies only to the exterior, or that this protection applies only to those features expressly mentioned in the listing description. ............I propose to change the law so as to bring it into line with public perceptions.”

What the government is now proposing is that, in order to reduce the number of unnecessary applications for Listed Building Consent, they will enable [but not ‘require’ ?] the extent of a listed building’s special interest to be legally defined in its list entry – so only those parts of a building that contribute to its special interest will be protected by law, thus removing the requirement to apply for consent for works affecting other (‘unlisted’) parts of the building.

In practice, particularly in the case of Grade II listed buildings, the interior has very rarely been inspected, and the statutory listing description of the exterior is often quite brief and does not at present indicate the importance of those features which are mentioned in the description. The government clearly recognises that this will require an extensive re-survey of listed buildings, and so they are going to commission English Heritage to begin a programme to update the list entries of listed buildings, providing more detail on the special interest of those buildings, so as to ensure the protection of those parts of a building which are of special interest, while freeing from listed building control the parts of a building which are not listed. The programme will start by enhancing the listings of 20th century office buildings, because these are frequently the subject of LBC applications by business occupiers. The task as a whole will be enormous, and implementing the relaxation of the requirement for LBC may not therefore occur for some considerable time to come.

The proposal which I put in the mouth of my alter ego was rather simpler. It was confined solely to buildings listed as Grade II. I/he suggested that, in future, listed building consent should no longer be required for interior alterations to Grade II listed buildings unless such alterations would materially affect the basic structure of the building or would affect any internal feature which is specifically mentioned in the listing description. However, control over internal alterations would continue to apply to Grade II* and Grade I listed buildings (which are far less numerous) as it does at present. This would be a lot simpler than what the government is now proposing, and could be implemented much more quickly. There are very few interior features in Grade II listed buildings which are of special architectural or historic importance in themselves, and so there would be comparatively little risk of significant features being lost in this way.

The government’s actual proposal is not confined to Grade II listed buildings , nor is it confined to interior features. It is therefore rather wider in its effect than what I had suggested, but its implementation will be dependent on extensive re-inspection and may therefore be considerably delayed.

The government also proposes to change the procedure for seeking a certificate of immunity from listing so that it can be used more flexibly. This will no doubt be helpful to developers, but another change (which has not been proposed) which would be helpful to all owners and occupiers of listed buildings would be the introduction of a provision similar to the existing procedures for lawful development certificates, in order to enable them to determine whether listed building consent may or may not be required in particular circumstances. The non-availability of such certificates in respect of works to listed buildings is an anomaly that has long been in need of reform. LBC is needed only for those alterations which would affect the character of the listed building as such, and this would be a means of obviating disputes over whether or not particular works would or would not (or, if already carried out, did or did not) affect the character of the listed building, and so would remove the anxiety of threatened listed building enforcement action in such cases.

An interesting innovation which the government has proposed is to allow the owners of listed buildings to enter into a Statutory Management Agreement with their local planning authority to enable works specified in such an agreement to be undertaken without the need for separate LBC applications. This will reduce the need for repeated applications for Listed Building Consent where complex or frequently-changing listed buildings are involved. This provision is most likely to be used by business occupiers of listed buildings rather than by householders.

Another simplification of the current control regime is the proposed replacement of the need for conservation area consent for the demolition of unlisted buildings in conservation areas by a requirement for planning permission instead. Bearing in mind that such demolition is usually associated with proposed redevelopment of the site, this will obviate the need for two separate applications, and the common situation of two completely separate committee reports and decisions relating to what is in practice a single scheme. Carrying out development without planning permission is not at present a criminal offence, but in order to ensure continued protection of unlisted buildings in conservation areas, the demolition of such a building without planning permission will now be made an offence. One hopes that this will not be treated as a precedent for any future widening of the scope for potential criminal liability for carrying out development without planning permission.

Another way in which the government suggests that the LBC regime might be simplified is by introducing a prior notification procedure. As in other cases where a prior notification procedure applies (e.g. agricultural buildings, telecommunications development, etc.), Listed Building Consent would be deemed to be granted if the LPA does not respond to a developer’s notification by requesting a full application within a specified time. This proposal will be subject to consultation, and can be expected to meet with some opposition. In certain respects it would take us back to the pre-1969 situation, before the requirement for express consent for works to a listed building was introduced. The pre-1969 system was in effect a prior notification procedure, but failure to give the required notice had only limited consequences, and it was this weakness that led to the full listed building control system we now have. This problem would not arise if the current rules on prior notification are applied – failure to give that notification would render the works wholly unlawful and therefore liable to prosecution and enforcement.
Another intriguing suggestion which the government is canvassing is the possibility that they might legislate to allow certification of applications for Listed Building Consent by accredited independent agents. This would be analogous with the current operation of the building control system. Such independent agents would presumably have to be conservation architects or similar professionals with equivalent qualifications and experience. Something tells me that this is an idea that is not going to take off. We shall see what emerges from the forthcoming consultation exercise.

A consultation exercise is also proposed on the subject of minimum compensation where a listed building is compulsorily purchased in exercise of listed building enforcement powers. The objective is to devise a legal definition of the circumstances in which minimum compensation should be payable. At present this is uncertain, and is inevitably the subject of expensive and sometimes bitter legal dispute.

I assume that it is DCMS, rather than De-CLoG, which will be the sponsoring department for the proposed legislation. If or when parliamentary time can be found, I wonder if they may be tempted to dust off the abandoned draft Heritage Protection Bill from some years back, and see if any of its provisions could be shoved into the new Bill. Some of the proposals in the old draft Bill would now be inconstant with what the government is currently proposing, but there may be other parts of the old Bill which could be resuscitated. It will be interesting to see what emerges when draft legislation is eventually published.

© MARTIN H GOODALL