Memorandum by The Law Society (HIS 29)
PROTECTING OUR HISTORIC ENVIRONMENT: MAKING
THE SYSTEM WORK BETTER
The following comments are submitted on behalf
of the Planning and Environmental Law Committee of the Law Society.
The Law Society is the regulatory and representative body for
the 110,000 solicitors practising in England and Wales.
Question 1: Would a unified List for England
improve existing arrangements? Is a power at national level to
designate areas of historic importance necessary or useful? What
would it add to the present conservation area designation? What
issues would need to be resolved?
A national database to which enquiries could
be directed to establish whether a building was affected by some
form of listing or the nature of the constraints on that building
is obviously desirable. However, that is not what is being proposed
in the consultation document. The proposal envisages a local section
appended to the List. It would be the responsibility of local
authorities to ensure that conservation areas and locally listed
buildings were added to the local section. As a result it is likely
that enquirers would still have to refer to the local authority
in relation to buildings affected by local listings. In other
words the national List could only be relied on for historic monuments
and listed buildings graded I and II*. Moreover, we are some distance
away from English Heritage or any other body being able to provide
an effective national List. We would, therefore, only support
the introduction of a unified List for England if the resources
were provided for that project with a specified deadline for the
introduction of a national database. We would also press for the
inclusion on the List of all historic monuments and listed buildings,
including locally listed buildings.
Whilst we would generally welcome a more logical
system for the listing of historically significant areas and buildings
to make the process more transparent and comprehensible, we are
not convinced that the existing system for designation is fundamentally
faulty. We remain to be convinced that local planning authorities
are failing to use their powers in relation to listed buildings
and conservation areas or are using those powers in an oppressive
fashion. Furthermore removal of the power of designation to the
national level would not, in our view, be advantageous in all
cases. The inclusion of a property in a conservation area can
significantly impair the owner/occupier's ability to do whatever
they like with their building. Decisions affecting that right
at a national level are likely to be seen as remote interference
and are more likely to give rise to challenge. Whilst the involvement
of the Secretary of State and English Heritage in a decision on
whether to designate an area may be appropriate, we would suggest
that the initial recommendation should remain with the local planning
authority so that the occupier/owner can make appropriate representations.
By contrast, we accept that historic monuments are more likely
to be of a national character and should continue to be designated
by the Secretary of State.
Nor are we convinced that the power to designate
a building should be transferred from the Secretary of State to
English heritage. We agree that English Heritage should manage
the national List but the determination of whether buildings or
monuments should be included on the List must remain with a body
that is fully accountable to the public. Moreover, we strongly
recommend that the inclusion of any property on the national List
should be notified to the owner so that they have a chance to
object or to comment on the principle and the details. It would
be contrary to natural justice for a property to be subjected
to a type of designation without the right of appeal against such
a decision and could give rise to a challenge under the Human
Rights Act.
Question 2: Are the suggested safeguards sufficient
to allow English Heritage to become responsible for maintaining
the unified List? What other options might there be? For example,
might English Heritage establish some form of independent committee
to make the designation decisions? How would CABE's advice on
post war buildings be factored in?
We have no objection to English Heritage having
the statutory responsibility for maintaining the national List.
However, we do have concerns about moving decisions as to new
designations from the Secretary of State to English Heritage which
is an unaccountable body. While we recognise that as a public
body the exercise of its powers are capable of judicial review
just as much as the Secretary of State or the local authority,
that is not a reasonable and acceptable course for the ordinary
householder. Nor is it an acceptable alternative to a right of
appeal. As a body appointed by the Secretary of State, English
Heritage would be a more remote and less accountable body to have
responsibility for decisions with a significant impact on property
rights. The idea of a committee established by English Heritage
to make designation decisions does not surmount the problem of
unaccountability.
We strongly support the suggestion that the
Secretary of State should retain the power to call in exceptional
cases for decision and the provision of new rights of appeal for
owners and applicants.
Question 3: What criteria should be used to
determine what item should be placed on the List?
PPG15 gives general guidance on the criteria
for deciding whether to list a building. Beyond that, the merits
of a particular building are almost a subjective matter. We would,
therefore, suggest that English Heritage should be under an obligation
to consult bodies with the appropriate expertise—the Commission
for Architecture and Built Environment in relation to 20th century
buildings, for example. Consideration should also be given to
seeking formally the views of local residents as to the merits
of a particular building and its proposed inclusion on a national
List. How many residents would have supported the listing of a
1 960s office block at the Elephant and Castle (the old DHSS offices)
if they had had the opportunity to comment in advance of the listing?
We disagree with the suggestion that the decision
on the listing of a private dwelling can be taken without consideration
of the economic circumstances and consequences for the building
and its owner. Listing can represent a significant additional
cost and it is nugatory for such a burden to be imposed when there
is no possibility of it being borne. That would be a recipe for
the future neglect of the property, undermining the whole point
of the listing in the first place. However, we do recognise that
there are instances where the buyers of a commercial or industrial
site that has historic value allow the property to gradually fall
into ruin with the deliberate aim of persuading the authorities
that there is no alternative but to allow the owner to proceed
with the development/demolition that they have always intended
for the site. In those cases to give credence to the arguments
on the grounds of economic viability would merely play into the
hands of those seeking to abuse the system designed to protect
the historic environment. Our conclusion is, therefore, that the
authorities must have the discretion to take account of economic
considerations in relation to designated properties so as to ensure
that any additional costs imposed on the owner/occupier are proportionate.We
also recommend that English Heritage should be under an obligation
to consider alternative forms of protection before embarking on
listing. If a more viable alternative exists which will still
ensure the maintenance and protection of a building, that should
be entirely satisfactory for all concerned.
Question 4: Should the present gradings at
I, II* and II be retained? Should some of the items at grade II
move onto local lists? What safeguards would be needed?
We would support allowing some of the existing
buildings covered by grade II to be moved to the lists maintained
at local level. However, that process must be accompanied by a
proper form of consultation with the owners/occupiers and with
other local residents, with the right of appeal for owners in
the event of disagreement with any proposed transfer between the
national and local lists. Some may object to the "down grading"
of a building but the protection provided by listing would remain.
The most obvious safeguard would be to ensure that the owner/occupier
understands clearly the constraints on what they can do to their
property remain. ldeally the opportunity should be taken to provide
statements of significance to enable owners to comprehend what
they can and cannot do to their property.
Question 5: Would a requirement for statements
of significance help to establish for owners and the local authority
what was important to conserve? How could they take account of
the inevitable changes in values over time? What should be the
process for drawing up statements of significance for existing
listings? Should maps take the place of the present definition
based on curtilage?
We strongly support the provision to owners/occupiers
of a clear statement, not only of the significance of their building,
but also of the precise aspect of the building affected by the
listing or designation. At present some local planning authorities
decline to respond to enquiries as to whether permission is required
for certain works to a building and insist on the submission of
a formal application. The more information of this nature which
can be provided the less likelihood unauthorised works are to
be carried out, reducing the necessity for enforcement action.
Not only would this assist owners/occupiers to know whether they
need to apply for listed building consent but also local authorities
in determining applications for planning permission to undertake
works to listed buildings.
To ensure that the statements remain relevant,
local authorities would have to be under an obligation to undertake
a rolling programme of review of the statements applying to the
listed buildings within their areas. In producing the initial
statements, local authorities should be required to consult appropriate
national bodies (English Heritage, CABE), other interested groups
(for example the Victorian society), local residents and current
owners/occupiers.
We endorse the proposal to replace definitions
based on curtilage with more readily comprehensible maps. We also
recommend that the owner of a listed building should have the
right at any time to request the Secretary of State to instruct
English Heritage, in the case of a property on the national List,
or the local authority, in the case of a locally listed building,
to provide a statement of significance in respect of their property.
The owner may be contemplating works to the building and that
information would be invaluable. We would go further in suggesting
that an owner should have the right to present a statement of
significance to the local planning authority and the authority
should be under a duty to agree, negotiate necessary changes or
provide their own draft statement within a specified time.
Question 6: Should the listing process become
open and who should be consulted on an application? Might there
be different requirements for private properties which are lived
in? Should protection be applied during the period when listing
is under consideration?
The owners and occupiers of any building proposed
for listing or designation must be consulted in every case. In
addition local authorities should be encouraged to consult proximate
residents and local organisations with an interest in local history
and buildings. This applies both to occupied and unoccupied properties
whether or not in private or public ownership. We accept that
there must be some form of protection during the listing process
to prevent the unscrupulous from damaging a building. It may be
necessary for the Government to remove liability for the payment
of compensation from local planning authorities arising from the
issue of building preservation notices.
Question 7: Should there be a right of appeal?
In what circumstances would a right of appeal be justified? Should
the suggested right of appeal apply just to owners or to other
interested parties as well?
There must be a right of appeal for the owner/occupier
of a property faced with a proposal for designation because of
the possible implications for their property rights. However,
the Committee is not convinced about granting of rights of appeal
to third parties. Third parties do not have a direct interest
in a property. They do have the right to recommend the Secretary
of State to consider designating a building. If the third party
is a local civic society then they should be consulted as part
of the due consultation process on a proposal for designation.
They are also able to contribute views in the
event of an appeal against designation. While the Committee acknowledges
that decisions on listing and conservation areas will have an
impact upon the local environment, as a whole the Committee is
unable to support the extension of the right of appeal to other
interested parties. However, the Committee would wish to draw
the Department's attention to the fact that the UK has yet to
implement fully the requirements of the Aarhus Convention to provide
members of the public with the right of access to information
concerning local projects and programmes and access to justice
in matter affecting the environment. The question of third party
rights may need to be reconsidered in that light in the near future.
Question 8: What kind of consent regime will
be most appropriate for a unified List? Should English Heritage
seek to define individually at the time of listing what works
will or will not require consent or should generic rules be applied?
What generic arrangements would be suitable for historic areas?
We strongly endorse the proposal to supply owners
with a comprehensive pack of information when their property is
listed. If the reform of the system for the designation of historic
monuments and listed buildings is to be worthwhile, it is essential
that the owners/occupiers should be supplied at the time of listing
with details of those works which would require planning consent.
The details will of necessity be pertinent to the particular property.
Generic details would be appropriate for properties affected by
conservation areas status.
Question 9: How feasible are management agreements
as an alternative to statutory consents and in what circumstances
could they be most useful? What would be the essential components
of such agreements? What safeguards are needed to ensure openness
and rigour?
Without some form of statutory backing, management
agreements could prove ineffective. However if there are the means
by which the authorities can ensure that legal action will be
taken against an owner/occupier who fails to comply with a management
agreement, then we would support that approach in the case of
wider sites containing several buildings. We do not consider that
such agreements would be appropriate in respect of individual
buildings.
Question 10: Should the Government provide
for joint agreements covering the natural and historic environment
(such as are now available under agri-environment schemes) to
be recognised in statute as an alternative to consent requirements?
We consider that statutory provision for agreements
with rural owners covering the management of both natural and
historic features would be an appropriate alternative to consent
requirements. However such agreements cannot be treated as relieving
authorities from policing and enforcing the terms.
Question 11: How can the national interest
in protecting important archaeological sites best be reconciled
with the needs of farmers?
Question 12: What would be the most helpful
ways within the new Entry Level and Higher Tier schemes of encouraging
farmers to protect the historic environment?
At the end of the day a farmer has to make a
living from his land. To restrict his ability to do so, however
significant the historic or environmental nature of a site may
be, will impair that ability. If the community nonetheless wishes
to protect such sites and to override the personal economic interests
of the owner/occupier in the interests of the wider national community,
then the farmer will have to be compensated. Adapting set aside
to encompass sites of historic and environmental interests might
be an appropriate solution.
Question 13: What planning guidance on protection
of the local historic environment would be of most value to local
residents, authorities and developers?
Ideally detailed guidance applicable to individual
buildings would be of most value. In reality the sort of guidance
offered in PPG15 is the best that can be offered at present. However,
we would hope local planning authorities can be encouraged to
provide specific guidance for the owners/occupiers of buildings
in conservation areas to assist them when considering changes/improvements
to their properties.
Question 14: What would be the most productive
way of encouraging local authorities to undertake conservation
area appraisals? What might be done to encourage them to set out
bolder policies for enhancing rather them just preserving their
conservation areas?
In our view it is essential that an appraisal
should be provided for each conservation area. In the absence
of an appraisal it is difficult to determine what sort of development
will be permitted. Resources will be a constraint for some authorities.
However priorities may be the biggest problem. It may be necessary
for the Government to impose a deadline by which an appraisal
must be undertaken in respect of each conservation area within
a local authority. This could be by means of a fresh public service
agreement. If that is ineffective the Government could threaten
to remove the status of conservation area from any area without
an appraisal. A more positive approach to conservation areas might
be achieved by encouraging local authorities to work with the
local communities. One possibility might be designating them as
business improvement districts.
Question 15: Should there be a mechanism for
preventing demolition of locally listed buildings without consent?
Should this be linked to development proposals? What safeguards
would be needed to ensure the quality of local lists?
Hopefully with owners provided with details
of the nature of the listing of their buildings, there will be
less risk of locally listed buildings being repaired or demolished
without consent. The owners/occupiers of locally listed buildings
must be advised of the statutory requirements for them to obtain
consent for repairs/demolition and the local planning authority
should despatch warnings to applicants whenever development proposals
are submitted affecting a locally listed building. Furthermore,
we urge the Government as a matter of urgency to complete the
review of the General Permitted Development Order in the light
of the Shimizu case. The issue of partial demolition of listed
buildings is a key issue for local authorities and one over which
thy have little control at present.
Question 16: How could an effective sub-regional
team be created? Should it be primarily about developing guidance
and sharing best practice or about facilitating casework and providing
support to local authorities? What would be the benefits and downsides?
Clearly any efforts in this area must be below
the regional level. It then becomes a matter of deciding whether
the appropriate sub-regional level is the county council or the
local planning authority. In our view the closer that this function
can be to the local community the better. We would therefore recommend
that the sub-regional function should be located with the local
planning authority. We see no particular difficulties in the local
planning authority being able to develop policy and guidance or
to share best practice with other local authorities and we would
hope that the Local Government Association might see itself as
a clearing house in this respect.
Question 17: What are the important skill
gaps and what action would be most effective to bring about swift
change?
The Government is to be congratulated on the
additional resources it has already made available to local planning
authorities. Further resources in respect of listed and historic
buildings might also be necessary. Most local authorities already
have one or two officers with expertise in this area. Additional
resources will be needed to ensure that any further staff with
responsibilities in this area are able to attain the necessary
expertise.
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