Wednesday, 28 November 2012

Changes for Listed Buildings and Conservation Areas

While attention has been focused on the passage of the Growth and Infrastructure Bill through the Commons, another bill, the Enterprise and Regulatory Powers Bill, has been passed by the Commons and has been quietly making its way through the Lords. This bill includes a number of changes to the Planning (Listed Buildings and Conservation Areas) Act 1990. These changes had been announced some time ago, but it is interesting that the government has not taken the opportunity to revive the proposals that were included in the last government’s abortive Heritage Protection Bill.

Some of the ideas in this new Bill sound a bit high-falutin’, and one wonders what use is likely to be made of them in practice. For example the bill introduces ‘heritage partnership agreements’ between LPAs and the owners of listed buildings. These agreements can also be entered into with listed building owners by DCMS and by English Heritage.

A heritage partnership agreement may grant listed building consent under section 8(1) of the Act in respect of specified works for the alteration or extension of the listed building subject to any conditions that may be specified in the agreement. A heritage partnership agreement may also specify or describe works that would or would not, in the view of the parties to the agreement, affect the character of the listed building as a building of special architectural or historic interest, make provision for the maintenance and preservation of the listed building, and provide for the carrying out of specified work.

It may also provide for public access to the listed building and the provision to the public of associated facilities, information or services, while restricting access to, or use of, the listed building, or prohibiting the doing of any specified thing in relation to the listed building. The agreement may also provide for the payment of grants (on specified terms) for, or towards, the costs of any works provided for under the agreement, or in consideration of any restriction, prohibition or obligation accepted by any other party to the agreement.

A heritage partnership agreement must be in writing, must make provision for the parties to review its terms at intervals specified in the agreement, must make provision for its termination and variation and may relate to more than one listed building, as well as containing incidental and consequential provisions.

DCMS may make detailed regulations regarding any consultation that must take place before heritage partnership agreements are made or varied, about the publicity that must be given to heritage partnership agreements before or after they are made or varied and specifying terms that must be included in heritage partnership agreements. The regulations may also enable the Secretary of State or any other person specified in the regulations to make an order terminating a heritage partnership agreement or any provision of such an agreement;

Listed building consent granted by a heritage partnership agreement (except so far as the agreement or regulations otherwise provide) will enure for the benefit of the building and of all persons for the time being interested in it, but a heritage partnership agreement cannot impose any obligation or liability, or confer any right, on a person who is not a party to the agreement.

It will not be possible to get any of the covenants in a heritage partnership agreement lifted under Section 84 of the Law of Property Act 1925 (in contrast to the power to get restrictive covenants discharged or modified under that section).

Another innovation is the introduction of Listed Building Consent Orders, which will be similar in nature to the General Permitted Development Order. An LBCO will grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings in England. The consent may be granted subject to conditions specified in the order. An order may include a prior notification provision allowing an LPA to require details of works to be approved by them, and the order may grant consent subject to conditions relating to the making of an application to the authority for a determination as to whether such approval is required, and the outcome of such an application or the way it is dealt with.

A listed building consent order may enable the Secretary of State or the LPA to direct that consent granted by the order does not apply to a particular listed building, to listed buildings of a particular description, or to listed buildings in a particular area.

LPAs will also have power to make Local Listed Building Consent Orders (analogous to Local Development Orders). This power will be very similar in scope to Listed Building Consent Orders made by the Secretary of State. These powers will be subject to a degree of supervision by DCMS, enabling the Secretary of State to prevent the making of an LLBCO without his approval. The Secretary of State will also have power to revoke an LLBCO if of the opinion that it is expedient to do so.

There are provisions to cater for incomplete works to a listed building where a Listed Building Consent Order is revoked or amended. The order may include provisions permitting the completion of works if the listed building consent is withdrawn after the works are started but before they are completed. Compensation provisions are also included in the bill which are similar to those applying where the GPDO (or an LDO) is revoked so as to remove the deemed consent that was previously granted by the order.

A very welcome and long-awaited reform is the introduction of certificates of lawfulness for proposed works to a listed building. This will enable anyone who wishes to ascertain whether proposed works for the alteration or extension of a listed building in England would be lawful to make an application to the local planning authority specifying the building and describing the works. If on an application under this section the local planning authority are provided with information satisfying them that the works described in the application would be lawful at the time of the application, they must issue a certificate to that effect; and in any other case they must refuse the application. The lawfulness of any works for which a certificate is in force under this section is to be conclusively presumed unless there is a material change, before the works are begun, in any of the matters relevant to determining their lawfulness.

There will be a right of appeal against the refusal of a Lawful Works Certificate. Detailed procedure rules will be made for the conduct of appeals. In practice, these appeals will no doubt be very similar to appeals under section 195 of the principal Act.

In addition to these changes, there are provisions in Schedule 17 of the bill which amend section 171B of the principal Act so as to remove entirely the time limit for enforcement action against a breach of planning control in respect of the demolition of an unlisted building in a conservation area (in England only). However, in an enforcement notice appeal under section 174 against an enforcement notice that relates to any such demolition, an appeal may also be brought on the grounds that the demolition was urgently necessary in the interests of safety or health, it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, and the relevant demolition was the minimum measure necessary.

A new section 196D will make it an offence to demolish an unlisted building in a conservation area without the required planning permission. Failing to comply with any condition or limitation in a planning permission for any such demolition will also be an offence. In the same way as in the case of a section 174 appeal, it will be a defence for a person accused of an offence under this section to prove that the relevant demolition was urgently necessary in the interests of safety or health, that it was not practicable to secure safety or health by works of repair or works for affording temporary support or shelter, that the relevant demolition was the minimum measure necessary, and that notice in writing of the demolition was given to the local planning authority as soon as reasonably practicable. (All four elements of the defence must be proved.)

A person guilty of an offence under this section will be liable on summary conviction, to imprisonment for a term not exceeding 12 months or an unlimited fine or both, and on conviction on indictment, to imprisonment for a term not exceeding 2 years or an unlimited fine or both. This causes me to raise an eyebrow, because custodial sentences had been abolished for other planning offences. This, therefore, appears to be a retrograde step.

Where a fine is imposed, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to that person in consequence of the offence. It is also provided that where, after a person commits an offence under this section, planning permission is granted for any development carried out before the grant of the permission, that grant does not affect the person’s liability for the offence.

Finally, Schedule 17 also amends the Planning (Listed Buildings and Conservation Areas) Act 1990 by enabling any entry in the statutory list of buildings of special architectural or historic interest to provide that a particular object or structure fixed to the building or within the curtilage of the building is not to be treated as part of the building for the purposes of this Act, or that any part or feature of the building is not of special architectural or historic interest. However, this provision applies only to entries for buildings that are listed, or entries that are amended, on or after the date on which this new provision comes into force.

The House of Lords Committee Stage is due to start on 3 December.



  1. I see listed building that have been allowed to disintegrate simply because the owner was aggrieved by the designation. I have seen a 50 year old barn with a corrugated roof listed. One example of unsound designation is a couple of fields as a Historic Park and Garden without any evidence on any maps in history, the 19th century in particular.

    What happens if someone is prosecuted and the courts discover that the designation is flawed?

  2. If a building is listed, then it’s listed, and that’s that. You can seek de-listing, but this is very rarely allowed. The court won't take any notice of a complaint that the listing was unjustified or somehow flawed.

    As regards the inclusion of land within the Register of Parks and Gardens of Special Historic Interest compiled under the National Heritage Act 1983, this does not confer any special protection on such land. In principle, such a designation is capable of being a material consideration in the determination of a planning application, but there are no provisions either in the 1983 Act or in the Planning Acts which require any special consideration to be given to the desirability of retaining, preserving or protecting any such park or garden land. I had a major tussle with one LPA over an area of farmland that had allegedly been emparked and landscaped by Humphrey Repton. The designation under the 1983 Act was based on the existence of one of his Red Books, but our research showed that whilst Repton had written a report in 1793 and illustrated some ideas in the form of a Red Book, he was distinctly unenthusiastic about the idea of forming any extensive park and suggested that it would be better to hide the landscape from the house by planting trees to close off the view! In practice, the owners of the big house couldn’t afford it anyway, and so the park was effectively abandoned. But we could not shift the LPA or English Heritage from their insistence that this was a precious example of a Repton landscape. In the end the matter was resolved in a completely different way.

  3. martin
    Love your blog btw..interesting reading on cold winter nights..
    I have an interesting case where the LPA are in breach of listed building Act but will not acknowledge the fact, despite pursuing my client for the exact same breach. Their position is now that a reflective finish on their double glazed replacement windows does not need consent as it it temporary...bunkum surely?
    In addition, having been through English Heritage and the DCLG and to Pickles himself, nobody has an appetite for any enforcement rule for the 'police' and another for the rest of us...I could furnish you with the whole sorry tale but perhaps not in this forum....
    Any thoughts for those who would like to see planning controls followed by this LPA?