Saturday, 3 December 2011

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.



  1. Interestingly, most LPAs adopt the narrow interpretation for determining PD but a much wider interpretation in respect of Listed Buildings. Is this lack of confidence or a drive to up their application count?
    How can we enforce some consistency?

  2. In answer to Chris P, I don’t think it is unduly cynical to suggest that LPAs, and also planning inspectors and the courts, tend to interpret the law to produce the desired result, or the result which they consider fair and just or otherwise ‘in the public interest’. Thus there is a temptation to cut down the curtilage when considering permitted development within Class E of Part 1, but to take a more liberal view of the curtilage of a listed building, when considering whether an outbuilding is within the curtilage so as to bring it within the listing. In an ideal world, this shouldn’t happen, and a rigidly objective approach would produce complete consistency. But in all areas of the law one constantly sees the tendency to strain the interpretation to produce a particular result. In extreme cases it can produce anomalies and injustice, but I suppose that’s just the way of the world. [For further comments on the definition of ‘curtilage’, see now my two recent posts on “Curtilage Confusion”.]

  3. I am concerned that your proposed changes to the system of control shows a lack of understanding of what is the ‘special architectural and historic interest’ of a building, or indeed how an old building functions.

    Two points.

    ‘Materially affect the basic structure’. Who makes that judgement? No more prĂ©cis than that laid out in Section 7 of the Act at present.

    You seem to be suggesting that if it is not structural then no consent is required? So no need to remove 400 years old timber screens, or remove plaster wall paintings then (which I see in grade II buildings)? But you would need consent to remove the modern wall put in that was put in for structural reasons, but now intended to alter? You show no understanding of plan form or conservation of historic fabric. The irony is that I see in buildings what I see in museums. Why do we value it in a glass case, but not in the building where it belongs.

    Buildings of traditional construction function differently. Moisture travels through them, and if modern materials are used inappropriately then can decay, and become unpleasant places to live. People pour money into them carrying out ill advised and useless work when a traditional approach would work and be cheaper.

    I look forward to the resurvey that includes interiors. I think a number of buildings will drop out of being listed, whilst others will prove more important. I know a number of 15th C buildings that were refronted in the 17th or 18th C, and are far more important and rare (if you are of the view that historic buildings are important) than first look from the outside.

    I disagree with your assertion that “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” What do you base this view on? I am a conservation officer in a local authority with getting on for 5000 list entries, and I constantly find features of ‘special architectural or historic importance’ which are not noted on the listing. Think of a mill building, which might mention the water wheel and if you are lucky how many grinding stones there are. In your world all the other machinery could be removed, as it is not structural and not noted in the listing.

    I can see a way forward on prior notification, which would save the resurvey. An owner notifies the LPA of the proposed works and the LPA can agree to those works without a consent, or a consent is required. The comparison would be Agricultural Notifications. It would remove a large number of innocuous minor changes from the system of control, allowing low-level changes to be made which are not damaging, and indeed some of which should be encouraged! It does mean though that the LPA needs someone who knows what they are doing.

    It is all about babies and bath water. We need to conserve what is important, whilst allowing buildings to continue in use and be relevant. At a housing level it often about getting the right person for a building, the one person may aspire to a large farmhouse kitchen in a three cell cross passage house, looking to destroy four hundred years of history, whilst the for the next the layout is ideal. On that basis is the loss of historic fabric acceptable?

    Not all change is justified in the historic context, and I am concerned that a rush to simplify will result in the destruction of much of the history that relates to the ordinary man without any real knowledge of what is being lost. Hence the need for a resurvey. Unless of course we properly use section 7, and have a system of prior notification when there would be no need for this.

    GV BSC(Hons) BTP DipArchCons MRTPI IHBC