Wednesday, 22 August 2012

Locally listed buildings


One of the practices of some local planning authorities that has always irritated me is the compilation of local lists of buildings which the authority considers are of architectural or historic interest, or which they regard as ‘landmark’ buildings.

The reason for my irritation is that we have a well-established statutory system in this country for the formal listing of buildings of architectural or historic interest on a national basis. These are buildings which are objectively assessed by English Heritage as being of architectural or historic interest and which are then included by the Department of Culture Media and Sport (DCMS) on the statutory list under the Planning (Listed Buildings and Conservation Areas) Act 1990. Buildings which are not included in the statutory list are, by definition, not of listable quality, and if anyone thinks they are, there are procedures available for having them listed, if DCMS on the recommendation of English Heritage agrees that they should after all be included in the statutory list. An LPA can seek the ‘spot listing’ of a building by DCMS, and if it is considered to be of listable quality it will subsequently be added to the statutory list; if not, then it won’t.

Where unlisted buildings which in themselves are not of listable quality form a group which the LPA considers is worthy of protection, they have the power to designate a Conservation Area under the same Act. In many cases, conservation areas include both listed and unlisted buildings. The protection given to unlisted buildings in a conservation area is less than that afforded to buildings on the statutory list, but their demolition is at least prevented without prior consent.

Thus there is no justification for LPAs to compile their own entirely unofficial lists of ‘locally listed’ buildings. Such a list has no statutory effect and does not affect the legal status of that building in any way. Inclusion of a building in a ‘local list’ does not afford it any formal legal protection. At most, the fact that a building is included in a ‘local list’ of ‘landmark’ buildings, or however they are described, may be a material consideration in the determination by the LPA of any planning application relating to development affecting that building, but that is as far as it goes.

The full range of Permitted Development rights will continue to apply to a ‘locally listed’ building, unless it is in a conservation area – in which case the same slightly reduced PD rights as apply to other unlisted buildings in a conservation area will continue to apply to the ‘locally listed’ buildings within that area. If the LPA wishes to restrict or remove PD rights, they can do so only by making an Article 4 Direction applying to a specific building or buildings or to a specified area within the district.

Thus the existing protection of the statutory system of listed buildings and conservation areas is more than adequate to ensure the protection and preservation of buildings worthy of such protection, and the extra-statutory designation by LPAs of ‘locally listed’ buildings is entirely unnecessary, and should be discouraged.

Bearing in mind the lack of formal protection given to ‘locally listed’ buildings, a determined developer can afford to take a robust approach in these cases, and may well be able to so arrange matters as to entirely circumvent the purported protection which the LPA has sought to give to ‘locally listed’ buildings. If it is not in a conservation area, demolishing the building in question before putting forward a planning application for the redevelopment of the site may well be an attractive proposition. In fact, the ‘local listing’ of such a building might well encourage such an approach, in order to avoid the sort of arguments that might arise over its demolition and replacement if the building were to be left in place while the redevelopment proposals are under consideration.

So ‘local listing’ of buildings might in practice prove to be counter-productive from the LPA’s point a view. This is something which Bristol City Council may care to ponder, as the latest LPA to contemplate the possibility of ‘local listing’.

© MARTIN H GOODALL

13 comments:

David Merson said...

Martin
What you say is quite correct but I have always thought it strange that the definition of Heritage Asset (firstly in Annex 2 to PPS5 and more recently in the Glossary to the NPPF) includes "designated heritage assest and assets identified by the local planning authority (including local listing)".
David Merson

Anonymous said...

Is your concern over demolition overstated in the sense that planning permission would be required or is all demolition permitted development?

Dr Anton Lang MRTPI said...

Hear, hear! There is way too much saved or protected just because it is old. So what, take a photo / do a survey and move on. We are restricted in our land and protect far too much. A maximum of five conservation areas per district and no more than 100 listed buildings - that would sort the wheat from the chaff. #Superplanner71 Dr Anton Lang MRTPI

Tom said...

As an LPA policy planner I agree with the points that we should only protect buildings/areas that meet the criteria for listed buildings and conservation areas. Many of our current historic buildings were built to replace older buildings which had outlived their usefulness. Its really a matter of ensuring theat what comes in its place is special.

In my experiance its not so much the planners who cause the problem as the conservation lobby who conflate 'old' with 'historically significant'. The public and Members have 'pet' buildings which they like or (more often) don't want to have the development which will replace the demolished building near them.

As for limiting the number of listed buildings and conservation areas I hope it wasn't a serious suggestion!

Martin H Goodall LARTPI said...

In answer to Anonymous (23 August) - Demolition in itself is permitted development under Part 31 (to the extent that it is not excluded altogether from the definition of development by ministerial direction). However, the scenario I had in mind was an application to redevelop a site which would involve the demolition of a locally listed building (not being in a conservation area) which is still standing at the time the application is made. A refusal is very likely in such circumstances . The obvious temptation is for the developer to demolish the locally listed building (perfectly lawfully), and then to apply for planning permission for the proposed new development.

HassanHassan said...

Dear Martin, I would just like to thank you for such an interesting blog.
Iam in a position of deliberation as to purchase a property that is not in a conservation area but is localy listed for its character. The house in my opinion is beautiful however it is not practical for modern living, therefore would need extending and modernising in a way that would compliment the building interns of look and materials. My fear ofcorse is purchasing the property and then being refused planning.
What would you suggest I do?

Martin H Goodall LARTPI said...

In answer to Hassan Hassan (17/02/14), locally listed buildings, whilst they do not have any formal protection, are nevertheless recognised by the NPPF as ‘heritage assets’. There is therefore likely to be some resistance on the part of the local planning authority to development that would involve the demolition of a locally listed building, and the refusal of planning permission might very well be upheld on appeal. My advice would be to obtain detailed expert advice on this issue before proceeding further.

heath45 said...

What a ridiculous comment from Anton Lang, or maybe it was just tongue-in-cheek. Obviously there are some local authority areas where you would struggle to find half a dozen decent buildings, and others where there are thousands. I share the frustration about introducing bureaucracy and shades of grey where there used to be clarity, but notwithstanding this blog, local lists and undesignated heritage assets do have official blessing via the NPPF and the English Heritage / Historic England quango and via those in local plans and neighbourhood plans. And we are supposed to protect the settings of locally listed buildings too... Despite my long experience in heritage matters, I remain nonplussed about the effectiveness of local lists, and neither the NPPF or Historic England guidance really satisfy my concerns. Wales seems to set far less store by them.

Martin H Goodall LARTPI said...

I happen to agree with Dr Lang and did not find his comment in the least bit ridiculous. However, under the NPPF, locally listed buildings are treated as ‘heritage assets’ and, whilst not enjoying any statutory protection, their proximity to the proposed development may be treated as a material consideration to the extent indicated by the NPPF.

Andy said...

Have these rules changed or is it still possible to demolish a locally listed building legally (not in a conservation area and not the subject of an article 4 direction)? Does the Town and Country Planning (General Permitted Development) (England) Order 2015 mean it is now a requirement to notify the local authority prior to demolition? Thank you

Martin H Goodall LARTPI said...


Locally listed buildings (other than those in a conservation area) have a somewhat ambivalent status. They do not enjoy statutory protection; thus their demolition, except in a conservation area, is permitted development under Part 11 of the Second Schedule of the GPDO. (Such demolition, unless it is within a conservation area, is not relevant demolition for the purposes of section 196D of the principal Act). Yet locally listed buildings are treated as “heritage assets” where a planning application is made that might affect them - see NPPF, footnote 9 to paragraph 14, and paragraphs 128ff (and specifically para 135ff in relation to “non-designated heritage assets”).

Turning to the second part of the question raised, demolition under Part 11 is subject to the conditions in paragraph B2 , including a requirement to make a prior approval application to the LPA, except in cases of urgency (and even in this case the developer must, as soon as reasonably practicable, give the LPA a written justification of the demolition).

[I am not aware of any change to the rules since 2015, but the usual disclaimer applies as it does to the entire contents of this blog, and so these remarks must not be relied upon in any way as legal advice.]

Jeannie bond said...

Hi Martin. I find your blog very informative. We are the owners of a site which includes a defunct water mill. To my knowledge this was built in 1789. There is a house attached to it which we live in. On purchasing the buildings, which include a stable block, some bull pens and a breeze block milking parlour we were not aware of any kind of listing or conservation orders on these buildings. We developed the mill building and the milking parlour into a teaching centre for disadvantaged groups and had planning permission to convert the milking parlour into a course room, office and dining facility. This was 25 years ago.
We have just learned, from seeking permission to convert the milking parlour into holiday lets, that the site is an ' undesignsted heritage site. I have no idea what this means and as the owner of the site have never been appraised of this at any time other than now. Is this legal or lawful or even possible? Can you enlighten me please. I do understand from your blog that this is not as restrictive as listing the buildings, but we have made many alterations to the mill building and wonder if we will now have to reinstate the original fixtures e.g doors and windows. I do hope you can help

Martin H Goodall LARTPI said...

In answer to Jennie Bond, the concept of “undesignated heritage assets” has evolved almost by stealth over a number of years. It is, in effect, an attempt by local planning authorities to extend some form of protection to buildings and other objects which are not covered by an official designation such as (among others) listing as a building of architectural or historic interest under section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

Buildings that have not been placed on the statutory list under the Listed Buildings Act do not have any special protection, beyond the ordinary development management regime, which is where the concept of “undesignated heritage assets” comes in. For a number of years, quite a few LPAs have identified “locally listed” buildings, which they think ought to have some measure of protection, even though they are not listed buildings under section 1 of the Listed Buildings Act.

Compilation of lists or records of such buildings is entirely informal, and does not involve any set procedure (which is one aspect of the practice that makes the concept of “undesignated heritage assets” rather unsatisfactory). Development management policies in relation to such identified ‘assets’ will be found in Local Plans and/or in supplementary planning guidance published by these LPAs.

Despite the lack of legislation on this issue, the government does recognise the concept of “undesignated heritage assets”. So, for example, the NPPF contains numerous references, some of which relate specifically to designated heritage assets (defined in the Glossary in Annex 2 as “: A World Heritage Site, Scheduled Monument, Listed Building, Protected Wreck Site, Registered Park and Garden, Registered Battlefield or Conservation Area designated under the relevant legislation”) but there are also numerous references to “heritage assets” generally, and the Glossary makes it clear that the term “heritage assets” includes not only officially designated assets, but also assets identified by the local planning authority (including local listing).

Thus, whilst listed building consent is not required for alterations to an “undesignated heritage asset”, nor are permitted development rights withdrawn (unless an Article 4 Direction has been made, or they are withdrawn by a condition attached to a planning permission), an application for development requiring planning permission will be processed and determined in accordance with the policies and practices that the council has adopted in relation to “undesignated heritage assets” (backed up by the advice in the NPPF).