Memorandum submitted by English Heritage
SUMMARY
This submission highlights the main benefits
of the Heritage Protection Bill, the areas where English Heritage
believes further work is necessary and the resource implications.
MAIN BENEFITS
— A single accessible list of
designated sites, abolishing the confusing and often overlapping
regimes of listing, scheduling and registration.
— A single test of "special
interest" which reflects the modern understanding of the
historic environment as a joined-up entity rather than a disparate
number of components managed by different regimes.
— A clear separation of roles
between English Heritage and government. Instead of the current
duplication English Heritage would have responsibility for designation
with a new right of appeal to the Secretary of State.
— Formal consultation with owners
which together with the new appeal process would result in the
opening up of a system often regarded as closed and secretive.
— Heritage Partnership Agreements
between owners, local authorities and English Heritage for large
or complex sites which will encourage long-term strategic management
and remove unnecessary repetitive regulation.
— Strengthening local authority
management of the historic environment through devolving responsibility
for all Historic Asset Consents, requiring local authorities to
maintain or have access to a Historic Environment Record and reinforcing
the regulation of Conservation Areas and locally designated buildings.
AREAS WHERE
FURTHER WORK
IS NECESSARY
— raising the threshold for interim
protection;
— protection of buildings of special
local interest;
— translation of the current offence
to demolish without consent in a Conservation area into a new
offence;
— Government commitment to a new
Planning Policy Statement for the historic environment to replace
PPGs 15 and 16 and reflect the Bill's joined-up approach to the
historic environment and help define concepts such as "special
interest.";
— the Retention of the familiar
terms "List" and "Listing"; and
— ensuring that the protection
of World Heritage Sites is harmonised with the protection of other
heritage sites.
RESOURCES
— English Heritage resources—English
Heritage has earmarked sufficient resources over the next three
years to support the first phase of implementation. The major
elements of this will be training and capacity building, setting
up the new Register and a new strategic designation programme.
As implementation proceeds beyond 2010 English Heritage will need
additional resources to begin to revise the designations carried
over from the existing regimes.
— Local authority resources—We
expect the level of work created by the new processes to be broadly
similar to the current arrangements, save for the delegation of
consent for work to nationally designated archaeological assets
to local planning authorities. English Heritage is working with
DCMS, the Local Government Association and others to refine the
cost estimates in this area. Our view is that these will not be
substantial and that there will be longer term savings.
INTRODUCTION
1. EH welcomes the government's draft Heritage
Protection Bill. We believe the reforms it proposes are essential
for the protection and management of the historic environment
in the 21st century and would over time reinforce current best
practice to become standard practice. In so doing, it would help
change the culture of the heritage sector towards an approach
based on constructive conservation, including wider public engagement
and partnership.
2. The comprehensive overhaul of current
heritage protection legislation that the Bill represents is vital
if the historic environment is to fulfil its potential in managing
environmental change in England, as part of the reformed planning
system and other environmental management regimes for the natural
and marine environments. Because the Bill repeals much of the
existing legislative framework under which the sector operates,
a whole raft of changes are necessary to streamline the current
system. We welcome the whole reform package, the high level components
of which are summarised in Appendix A. Some of the major reforms
are, however, especially important and deserve particular emphasis.
They are set out below.
MAIN BENEFITS
3. The Unified Legislative Framework
and the Register: Fundamental to the reform package is the
Bill's provision for a new unified legislative framework through
a single system of national designation and consents. The new
Register of terrestrial and marine heritage assets is the key
building block of the new system. it will include the currently
listed buildings, scheduled monuments, registered parks, gardens
and battlefields, World Heritage Sites and historic marine assets.
The new Register would enable us to offer a simpler, comprehensive,
and accessible database for the management of the historic environment
at national level, to be linked to locally held datasets.
4. The Single Test of "Special
Interest": The other foundation of the new system is
the introduction of a single test of "special interest"
for both the designation and consent regimes for all assets in
the new Register. This single test reflects the contemporary understanding
of the historic environment as a joined-up entity rather than
a disparate number of components managed by different regimes.
It will effectively rid us of the artificial distinctions that
are increasingly anachronistic and inhibit integrated management
of the historic environment. For example, in future it will not
be necessary to try to decide where the archaeology of a site
ends and where architectural or building history begins. Again,
it is a question of enabling best practice to become the norm.
5. Clear Separation of roles Between
English Heritage and Government: We welcome the proposal to
transfer statutory responsibility for designation for terrestrial
historic assets from the Secretary of State to English Heritage.
As well as an indication of the government's confidence in our
competence and status as the lead body for the sector, this will
provide much needed clarity about the distinct roles of the Secretary
of State and EH. The new appeal process, whereby EH's designation
decisions can be formally challenged by appeal to the Secretary
of State, will reinforce this.
6. The Introduction of Formal Consultation:
From our experience of administering the listing system since
its handover to us from DCMS in 2005, we are convinced that the
introduction of formal consultation will allow much more effective
engagement in the designation process by owners and managers of
historic assets, local authorities and community groups. Together
with the new appeal process for designation already mentioned
above, this will result in the effective opening-up of a national
designation system often regarded as too closed to allow proper
public scrutiny and enable us to prove that the representations
of interested parties have been given due consideration in the
statutory process.
7. Heritage Partnership Agreements:
The Bill's proposal to establish Heritage Partnership Agreements
(HPAs) has the most potential of all the reforms to deliver a
change of culture in the way the historic environment is managed
over the medium to long term. These HPAs, based on a formal partnership
between owners and managers of historic assets, local authorities
and EH, will allow strategic management of complex sites such
as a university campus, or similar types of assets under single
ownership such as historic bridges or the British Waterways canal
network. They will also strip out unnecessary repetitive regulation
and thus improve efficiency. EH has, at government's request,
undertaken extensive testing of HPAs on a wide variety of sites
and the results have been very positive. Three of the most successful
have been at the University of East Anglia; the bridges, wayside
crosses and milestones of the Highway Authority in Cornwall; and
the London Underground. A list of HPA pilot projects is attached
as Appendix B.
8. Strengthening Local Authority Management
of the Historic Environment: It is vital that the Bill strengthens
local authority management of the historic environment. The reformed
system is not just about national designation and consents, it
is about the system at national and local level and its inter-dependence.
The Bill's provisions improve this relationship in several vital
ways by:
— Devolving to local planning
authorities the responsibility for the operation of the new Historic
Asset Consent system that replaces the current Scheduled Monument
Consent and Listed Building Consent regimes. This means that,
for the first time, local authorities have statutory responsibility
for the regulation of nationally designated archaeological sites,
with appropriate support from EH.
— Requiring local authorities
to establish and maintain, or have access to, an Historic Environment
Record (HER). This will be a new statutory duty but is not a new
concept. HERs will include national designated assets, Conservation
Areas and local designations and undesignated assets of special
local interest, and will be linked through the Heritage Gateway
to other related data management systems such as the NMR and Images
of England.
— Reinforcing the regulation of
Conservation Areas and locally designated buildings. The Bill
is incomplete in this respect, but we strongly endorse government's
intention, set out in the Explanatory Notes at the back of the
draft Bill, to widen the scope of Conservation Area designation
to include special archaeological and artistic interest, restore
the pre-Shimizu position to give local authorities control over
partial demolition of unlisted buildings in Conservation Areas,
and reverse the South Lakeland decision to ensure change benefits
Conservation Areas.
ASPECTS OF
THE BILL
WHICH NEED
FURTHER WORK
9. We have some residual concerns with the
Draft Bill at this stage, as set out below, but we believe it
is possible to resolve these before introduction into the House.
— If English Heritage decides
that an application for registration should proceed to consultation,
interim registration and consequent protection will follow. That
is an important and significant step for the owner. To be justified,
the application ought to have a reasonable prospect of success.
At the moment the Draft Bill refers to applications only needing
more than a "negligible" prospect of success to proceed
to the next stage. We believe that this will let through this
initial sift too many applications that do not deserve such consideration
and attendant (and potentially disruptive) interim protection.
— Protection of buildings of special
local interest was not covered in the Draft Bill. It is promised
in the White Paper. In our view demolition of locally designated
buildings should require planning permission at the option of
the local planning authority and without any compensation consequences.
This would bring protection up to the level afforded to buildings
within conservation areas.
— Within Conservation Areas it
is currently an offence to demolish without consent and it is
vital this deterrent remains. Unifying conservation area consent
with planning permission is a sound efficiency, but planning enforcement
procedures only create an offence of failing to respond to an
enforcement notice if and when one is served. A new offence of
failing to obtain advance planning permission for demolition of
a building in a conservation area or a locally listed building
(if required) should be introduced.
10. Alongside the Act and the related regulations,
a range of policy and guidance will need to be produced to assist
in their detailed interpretation. English Heritage envisages a
hierarchy of such policy and guidance, with the key document being
a new Planning Policy Statement (PPS) for the historic environment.
This will replace the existing PPG15 and 16.
11. English Heritage supports CLG's drive
to simplify procedures and guidance wherever possible and understands
why consideration is being given to reducing the number of PPGs/PPSs.
However, we believe that with a new Act there will be more need
than ever for clear guidance covering the whole of the historic
environment in a single document which could be significantly
shorter than the existing two PPGs together. There are a number
of important concepts that are not appropriate to include in the
Act or the Regulations but which need to be set out clearly to
ensure the smooth running of the new heritage protection system,
for example the presumption in favour of preservation, and helping
to define what "special interest" actually is.
12. English Heritage urges the Committee
to request CLG to commit to delivering a new PPS for the historic
environment. This would reinforce the Government's commitment
to the historic environment and assuage any concerns in the sector,
particularly in local authorities, that the changes being brought
in as part of the Heritage Protection Bill will not be backed
up by supporting guidance in a new heritage PPS.
13. English Heritage is fully committed
to working with CLG and DCMS to prepare the new PPS. We have also
identified a range of other guidance, to underpin the key elements
in the draft Act, such as Historic Environment Records, the selection
criteria for designation of heritage assets etc.
14. Terminology: The terminology
of the Bill is unnecessarily confusing in one fundamental respect,
the use of the word "Register" as the base of the new
system. While Register is a neutral word, avoiding identification
with either "scheduling" or "listing", "listing"
has such universal broad recognition among the general public
as well as owners and managers that it is by far the best term
that could be used as the core of the new system. All but 25,000
of the 500,000 existing designations carried over to the new system
will be "listings", and we are very concerned that "Registration"
will only necessarily confuse what is already crystal-clear. We
therefore strongly urge the substitution of the words "List"
and "Listing" for the Bill's terms "Register"
and "Registration".
15. World Heritage Sites: Improving
protection of World Heritage Sites remains urgent because of continued
UNESCO interest not just in the Tower of London, Westminster and
Liverpool but in others including Bath (likely to get a mission
this autumn). Because of these issues, focused mainly on the impact
of development on urban World Heritage sites but also beginning
to emerge with regard to wind energy (cf Blaenavon, Hadrian's
Wall, Orkney), ministers agreed to include new measures in the
Heritage Protection White Paper in March 2007. These were:
(i) Changing the Call-In regulations to make
it easier to call in cases affecting the Outstanding Universal
Value (OUV) of World Heritage Sites. Government is considering
responses to the public consultation on a new Call-In Regulation
which inter alia will require local authorities to refer to the
Secretary of State planning applications:
"where English Heritage have objected on
the grounds that a proposed development could have an adverse
impact on the outstanding universal value and significance of
a World Heritage Site or its setting, and has been unable to withdraw
that objection after discussions with the local planning authority
and the applicant. The Secretary of State will take into account
the views of English Heritage in deciding whether or not to call
in any applications referred for this reason."
(ii) Including World Heritage Sites in Article
1(5) (where they are not already included by virtue of other designations)
to impose more control on small-scale changes which incrementally
could damage OUV. Consultation on this change started on 27 May
along with that on the planning circular. The sites principally
affected will be Bath and Cornish Mining which have large areas
not covered by conservation areas, National Parks or AONBs. Issuing
a planning circular "which will further recognise in national
policy the need to protect World Heritage Sites as sites of outstanding
universal value, and will make more prominent the need to create
a management plan for each WHS, including, where needed, the delineation
of a buffer zone around it". The draft planning circular
was published for public consultation on 27 May, along with a
draft English Heritage Guidance Note which supports and supplements
it.
16. The Heritage Protection Bill provides
for inclusion of World Heritage Sites in the new Register but
expressly says that this does not mean any extra protection for
World Heritage Sites. It would be helpful if World Heritage Sites
could be added to Section 155. At the moment this covers only
Heritage Structures and Heritage Open Spaces and their respective
settings, and not World Heritage Sites. Including WHS would mean
that, in considering planning applications, local authorities
"must have special regard to the desirability of preserving"
the World Heritage Site, its setting and any features of special
interest that it may contain. This would strengthen their protection
in statute rather than just in secondary guidance.
RESOURCES
17. English Heritage's Strategy for
Implementing Heritage Protection Reform (HPR): English Heritage
has long believed that the reform process is incremental and can
only be fully achieved over time. Reform has already started with
the first stage package introduced in 2005 when DCMS handed over
the administration of the listing system to English Heritage.
Working to the current legislative timetable, we see the most
intensive and critical implementation phase to be from now till
2015: the next two years of 2008-10 when we are preparing for
the start of implementation currently assumed to be late 2010
and the subsequent quinquennium 2010 to 2015 when the impact of
the new system will be worked through.
18. The Role of English Heritage in
Implementing HPR: We are committed to working in partnership
with government and the sector to see this strategy through. We
shall do so through our continued advocacy of the new system,
in leading by example, and in setting up the core components of
the new system. We shall also support the operation of the system
through new guidance. We shall focus especially on training and
capacity building to foster the new culture and skills needed
for practitioners and others involved with the historic environment.
Our grant in aid settlement for 2008-11 has given us a core of
resources to engage in this work and this will be complemented
by the refocusing of some of our existing resources to achieve
the necessary progress of reform.
19. Unified Designation and the New
Register: One of the cornerstones of the new system. English
Heritage is currently developing the IT system to support the
provision of the new Register, and to support designation work
contributing to it. The Register is to be publicly available on
the internet, via Heritage Gateway, as a repository of information
on statutory heritage designations. It is due to go live when
the new system comes into force, in 2010, and will provide the
means for public access to the designation base and the designation
process. The funding to achieve this—a total of £1.05
million—is available from the GIA settlement.
20. Strategic Designation Programme: This
is another key English Heritage priority for implementing reform,
with the objectives of:
— meeting the White Paper commitment
to develop a new strategic programme of national designation;
— securing real and widespread
public consultation and engagement with designation activity;
and
— making the designation base
fit for purpose for the new Register.
21. As a key part of securing wider public
engagement in national designation activity, which the government
is promoting, English Heritage will be undertaking a major consultation
on priorities for a new national designation programme later this
year. The results of this consultation will be used to shape our
new strategic designation programme for the years ahead.
22. This will require considerable input
across English Heritage, necessitating the re-direction of existing
resources as part of the shift to a more strategic approach. A
total of £3.2 million, including funds from the GIA settlement
and redirected EH resource, is available for 2008-11. We are currently
discussing with DCMS how the current flow of applications for
designation, almost all for the listing of buildings, can be re-focussed
to release resources for agreed designation priorities.
23. Such a programme will also, however,
require significant new funding. Our current resources for designation
in 2008-11 will allow us to make a good start on new designations
to the standards of the new Register but not to make a significant
impact on the half million "legacy designations" carried
over to the new Register from the current regimes. Priorities
for revised designations are as important as new designations
in building confidence about the new system and will become an
increasingly important issue as implementation proceeds after
2010 when the contrast between old and new designations will be
ever more obvious. We are flagging this up now because we need
to persuade government that increased resources will have to be
found beyond 2010 for at least the next quinquennium to 2015.
24. Skilling the Sector: English
Heritage believes that effective reform demands a major investment
by consolidating and expanding the skills base of all who work
in managing the historic environment. Our training and capacity
building therefore constitutes a major strand of English Heritage's
Implementation Programme, and will have over £2.2 million
devoted over the first three years of the programme to the following
objectives;
— to ensure that everyone whose
work or decision-making affects the historic environment is aware
of the reforms before the Act comes into force;
— to provide heritage professionals
with the necessary technical knowledge to be able to implement
the changes with confidence as soon as the Act comes into force;
and
— to provide a balanced programme
of capacity building and training activity to ensure that everyone
has access to an appropriate level of information whether by training
events, e-learning or publications.
25. The Role of Local Authorities: For local
planning authorities there will be two major new statutory duties;
— to take responsibility for the
new Heritage Asset Consents across the range of assets; and
— to provide an Historic Environment
Record.
26. Our working assumption is that we expect
the level of work created by the new processes to be broadly similar
to the current arrangements, save for the delegation of consent
for work to nationally designated archaeological assets to local
planning authorities. In general we expect that EH will continue
to be consulted on all applications for Historic Asset Consent
affecting Grade I and II* assets (ie including currently scheduled
ancient monuments) and Grade II assets in respect of demolition.
For the new Heritage Partnership Agreements the general power
in the Bill requires EH to sign-off all such agreements. In practice
and over time we expect that this will be delegated in respect
of Grade II assets to local planning authorities. However this
would be subject to a Direction.
27. Heritage Asset Consent: Under
S88 of the draft bill, the local planning authority will normally
have responsibility for granting conditional Heritage Asset Consent.
English Heritage believes that this new duty will not place a
substantial new burden on local authorities in terms of numbers
of new applications to be dealt with; in global terms current
Scheduled Ancient Monument Consent applications make up a very
small proportion of the total of heritage related applications.
28. The Impact Assessment published by DCMS
to accompany the draft Bill assesses the additional administration
costs to local authorities arising from this new responsibility
as £400, 000 per annum. DCMS are committed to meeting the
new administrative costs, and make this clear in the Impact Assessment.
English Heritage is now working with DCMS, the Local Government
Association and others to refine the cost estimates for this and
identify monitoring measures for its operation over time. One-off
costs such as transferring the records of previous consents, and
providing training to local authority conservation and planning
staff will be met by English Heritage, supported by CSR funding.
29. The draft Bill re-iterates the principle
contained in PPG15 (para 3.25) emphasising the importance of expert
advice being brought to bear on proposed works to listed buildings.
English Heritage considers that this will have the effect of reinforcing
best practice for local planning authorities in relation to HAC
applications by ensuring that they have access directly or indirectly
to appropriate advice for any given application, including through
their own conservation staff or through archaeological staff based
at the same or a different tier.
30. English Heritage believes that there
is not so much a need of substantive new resources to meet this
responsibility as a need to ensure that existing resources are
redeployed effectively. Local planning authorities are already
expert in dealing with archaeological issues in the context of
planning applications, with in-house archaeological advice in
unitary authorities or from another layer of local government
in other cases. Local planning authorities will need to find new
or adjusted ways to make the necessary integration between available
expertise and those managing individual consent cases. It is again
a case of best practice becoming the norm.
31. English Heritage support for local authorities
in this new duty will come in a number of forms; English Heritage
will provide training courses for local authority staff taking
on new areas under the reformed system, while continuing to advise
on all applications where former scheduled monuments are concerned.
32. In the medium to long term, we see an
ever more integrated approach to the management of the historic
environment emerging strongly through the working out of the joined-up
approach the Bill espouses.
33. Historic Environment Records: Section
210 of the draft Bill sets out the new statutory duty for local
authorities to create and keep up to date a Historic Environment
Record, a dynamic information system containing information on
the historic environment, to include buildings, sites and archaeology,
and covering statutory and local designations, and non-designated
assets.
34. This is a new statutory duty, but not
a new concept—there is already full coverage of England
by HERs, mostly maintained at County level or Unitary level. The
intention is to maintain the status quo in this respect—districts
and boroughs will need to access rather than create and maintain
a HER. The required information is largely there, although they
do need upgrading to meet the standards that will be required
of them. The figures for doing so are set out in the Impact Assessment,
where DCMS have confirmed their commitment to meet these costs.
In addition, English Heritage is developing the Heritage Gateway
to help HERs achieve interoperability and consistent standards,
as well as being a vehicle for internet access for the HERs. Detailed
practical guidance on upgrading existing HERs to meet the new
standards will be published to support local authorities.
35. The costs of upgrading existing HERs
to meet the requirements of the Bill have been costed in detail,
at annual costs of £240, 346 in the first year, rising to
£565, 095 in the third year and remaining constant thereafter.
There will also be one-off costs of around £400K to make
the necessary structural changes and to develop interoperability.
These cost will be met by English Heritage from our CSR settlement
for implementation of the new system.
June 2008
APPENDIX A
A SUMMARY OF THE REFORMS
HERITAGE STRUCTURES
1. Current listed buildings and scheduled
monuments will all be combined onto one register of "heritage
structures". Nothing will drop off the current lists in the
transfer to the new register.
2. One of the great advantages of the single
register is the potential of creating a seamless protected environment
within which sits quite different elements that previously would
have been separately registered.
3. Buildings within the curtilage of what
are currently listed buildings will remain protected. New additions
to the register will not include curtilage buildings. The designation
process will decide what buildings within the curtilage merit
registration on the grounds of special interest and define them.
Nothing else within the curtilage will be protected. This will
bring much needed clarity.
SPECIAL INTEREST
4. A heritage structure can only be registered
if and to the extent that it holds special architectural, historic,
archaeological or artistic interest.
5. There is no definition within the Draft
Bill of what "special" means. Special interest will
be defined by the Principles of Selection contained within national
policy, as is currently the case for architectural and historic
special interest, set out in PPG15. Revised Principles will be
consulted upon.
6. Special archaeological and artistic interests
are new concepts. Artistic interest has a simple justification:
whilst architectural interest covers all design interest in buildings
and structures, including what could be more purely described
as engineering or industrial design, it does not so comfortably
encompass the pure artistry of statues and other works of art.
7. Including artistic interest will not
bring general cultural objects within the ambit of registration.
The physical definition of what can be registered is not altered.
So domestic scale works of art are quite unlikely to be registerable
unless they form part of the building.
8. Special archaeological interest is an
important new concept. There are two aspects worthy of close attention:
What is archaeological interest per se and when is it sufficiently
special to justify registration?
9. The definition of archaeological interest
does not appear in the Draft Bill, but the intention is to define
it in policy and guidance as "an interest in carrying out
an expert investigation at some point in the future into what
evidence the site or structure may contain of previous human activity",
or words to that effect. Whilst the principle is clear, the exact
words used in the definition will be the subject of consultation
on the new Principles of Selection.
10. For a site to be registerable on the
grounds of "special archaeological interest" there must
be good reason for believing that the site may contain evidence
of previous human activity that is of special historic interest,
or perhaps even of special architectural or artistic interest.
REGISTRATION PROCEDURES
FOR HERITAGE
STRUCTURES
11. All current listed buildings and scheduled
monuments will be placed on the new register as registered heritage
structures, without any amendment of their physical extent and
without any formal process.
12. From there on, anyone, including English
Heritage, can seek to add or remove an entry or amend it.
13. If the application is valid and has
a prospect of successfully meeting the special interest test,
then English Heritage will provisionally register the site and
consult relevant parties before deciding the matter. English Heritage
is concerned that only applications with a reasonable prospect
of success pass this first filter since the immediate consequence
is significant—full blown protection, albeit possibly temporary.
14. English Heritage welcomes the approach
taken to appeals. Being on paper only and not requiring consultation
when the Secretary of State believes the decision made by English
Heritage already looks perfectly sound, will ensure that the possibility
for mischief by using the appeal process as a delaying tactic
will be minimised. It is right, of course, that an appeal lies
with an elected minister.
15. The system for deciding what will go
on the register, what will come off and whether something on it
should be amended will thus be open, democratic and easy to use.
That is an important and very welcome change. It allows the public
to be a part of deciding what of our heritage deserves recognition
and management.
16. It does not of itself, though, fundamentally
change what type of assets will and will not be registered. The
test of special interest as set out in the Principles of Selection
will apply, whoever makes the decision. The Secretary of State
is currently the only arbiter. He will become the final arbiter.
Only in so far as there is a change in the Principles of Selection
will there be any change in what should and should not be registered.
Any claims that the Draft Bill will naturally lead to an enlargement
of the stock of registered assets are misguided.
CERTIFICATES OF
NO INTENTION
TO REGISTER
17. This is similar to the current system
of issuing certificates of immunity, but the new certificate can
be applied for at any time. This will be significantly helpful
to developers who can remove uncertainty before committing taking
a scheme to the planning application stage.
CLASS CONSENTS
18. The Secretary of State can direct that
certain types of activity are permitted without consent being
required. This is identical in operation to the Class consent
system under the Scheduled Monument legislation. That said, although
there is no draft of such class consents yet available, it is
clear that many of the current class consents will not survive.
Several of them were only necessary because otherwise consent
would have to have been sought for day-to-day activities that
did not affect the special interest. This will no longer be necessary
and there will be a consequent reduction in complexity.
HERITAGE ASSET
CONSENT
19. Before making a decision the local planning
authority must see if there is anything relevant in the local
historic environment record. It must also take expert advice.
This requirement is key for all stakeholders as inexpert and ill-informed
assessment of special interest can lead to wrong refusal of consent,
inappropriate alteration and serious loss of historic fabric.
An expert view of the special interest and the impact can be obtained
from several sources. There will obviously need to be guidance
on this issue so that local planning authorities know how to fulfil
this aim.
20. Only requiring consent where works affect
the special interest relieves the onerous requirements for consent
under the current scheduled monument consent regime, whilst ensuring
the proper management of those matters that do affect the special
interest. This should reduce the number of applications concerning
currently scheduled monuments.
21. Failure to obtain consent is rightly
an offence. This is currently a strict liability offence in relation
to listed buildings. The Draft Bill proposes a defence of not
knowing that the asset was designated, subject to the defendant
showing that they took all reasonable steps to ascertain whether
it was a registered structure. With the up-to-date register available
online at all times, this appears to strike the right balance.
ENFORCEMENT
22. Enforcement notices and injunctions
are available to prevent damage and in some circumstances seek
reinstatement. The effective extension of the damage reinstatement
powers to currently scheduled monument is a significant benefit.
ECCLESIASTICAL EXEMPTION
FROM THE
CONSENT REGIME
23. The exemption will apply to all heritage
asset types provided they are in ecclesiastical use. So for the
first time the churchyard and church can be managed under the
same regime covering all special interests.
HERITAGE OPEN
SPACES
24. All of the currently registered parks,
gardens and battlefields will be moved onto the new register as
registered heritage open spaces. The consistency of approach to
designation between this category and heritage structures, both
in justification and process, is obviously sensible.
25. The Draft Bill gives these open spaces
the best possible positioning in planning terms by putting the
list on a statutory basis and making it clear in law that their
special interest and their setting is a high priority, not just
a material consideration. That does not mean, of course, that
such considerations trump others automatically, but their importance
is very clearly indicated by Government.
WORLD HERITAGE
SITES
26. World Heritage Sites will all be shown
on the central register. This is the first time World Heritage
Site have been given statutory recognition. Of course their outstanding
universal value as recognised by UNESCO demands separate recognition
on the register. The protection systems for Heritage Structures,
Open Spaces and conservation areas will provide the backbone of
the World Heritage Site protection, alongside consideration of
the Outstanding Universal Value and the relevant World Heritage
Site management plan in planning applications.
MARINE HERITAGE
SITES
27. The most important development within
the sea environment is the ability to designate not just vessels
and their contents, but also all types of heritage structures
that are partly or wholly below the high water mark.
28. Using the touchstone of special interest
for designation and management decisions provides an appropriate
consistency with the land-based system. Given the complications
of jurisdiction ownership in the marine environment and the thin
scatter of the current marine designations, it is right that the
Secretary of State retains the designation decision and that English
Heritage centrally administer licence applications (with a right
of appeal to the Secretary of State).
HERITAGE PARTNERSHIP
AGREEMENTS
29. In using a protection regime that only
requires consent for works that affect special interest, the Draft
Bill strikes the right balance between protection and burdensome
regulation. The effectiveness of that approach does depend, though,
on the owner and the local planning authority understanding what
that special interest is and how it might be affected by works.
30. All new designations and revisions to
existing designations will provide an extensive (although not
exhaustive) description of special interest.
31. To further the understanding of special
interest and ensure that heritage asset consent is not sought
unnecessarily, any owner will in future be able to agree with
the local planning authority what works can and cannot be carried
out without consent. This agreement will be called a heritage
partnership agreement. It will effectively confirm what works
can be carried out without consent, provided they are carried
out in accordance with the terms of the agreement.
32. The Secretary of State may limit what
works can be covered by a heritage partnership agreement. A class
consent will be issued in due course to clarify the operation
of this important innovation.
33. These agreements may encompass other
matters to provide a core plan as to the future management of
a site or several sites. This has a significant potential to reduce
the burden on owners whilst improving the protection and management
of the assets.
HISTORIC ENVIRONMENT
RECORDS
34. It is clearly advantageous to set out
the core contents of the local historic environment record as
it will provide a consistency of approach across England. Understanding
what in the locale is valued and critically why it is valued aids
better protection, better design of development and reduces the
potential for conflict and delay in the planning process.
LOCAL DESIGNATION
35. The regime for locally designated buildings
is unfinished in the Draft Bill. English Heritage in general terms
supports the approach suggested in the White Paper: the local
authority is given the ability to require that planning permission
be sought for the demolition of a locally designated building.
[English Heritage believes it should be an offence to fail to
obtain such permission (see comments below on failure to obtain
demolition planning permission in conservation areas).]
CONSERVATION AREAS
36. Although not in the Draft Bill, very
important provisions concerning conservation areas will be introduced
into the Bill, as trailed in the explanatory notes to the Draft
Bill.
37. Reducing the number of separate consent
regimes by removing conservation area consent is very welcome.
Demolition of buildings within a conservation area will require
planning permission instead. English Heritage would be very concerned
to ensure that failure to get such planning permission would be
an offence. Demolition is usually irreversible, unlike construction,
and so enforcement notices used to police main-stream planning
are an inadequate deterrent.
38. English Heritage very much welcomes
the reversal of the unintended interpretation of the current law
thrown up by the South Lakeland and Shimizu decisions reversed.
Many more of us live and work in conservation areas than in listed
buildings. These two decisions have seriously hampered the proper
and intended effect of conservation area designation.
COMPULSORY REPAIRS
AND ACQUISITION
39. These powers of last resort where there
is a risk of losing a Registered Asset will be available for all
asset types, not just listed buildings, as is the case now.
40. Currently the local authority cannot
carry out works to a property in use. Under the Draft Bill works
can be carried out to any property in use or out of use, save
to the extent that works would interfere with any residential
use.
41. On compulsory acquisition, the local
authority will have the option of paying only minimum compensation.
This is currently only payable where the owner has shown deliberate
neglect for the purpose of seeing the building's demolition. This
is designed to prevent owners who refuse to carry out works of
preservation from profiting from the development potential of
their site. Given the owner has every opportunity to respond positively
by carrying out essential repairs and thereby avoid the process
of acquisition, this is a fair and appropriate measure.
ENGLISH HERITAGE
GRANT MAKING
POWERS
42. English Heritage very much welcomes
the revised grant making powers trailed in the explanatory notes
to the Draft Bill. These will be greater flexibility in the way
that we are able to support the sector.
Areas of Archaeological Interest
43. These have not survived the reforms.
There were very few of them and their limited benefit for non-designated
archaeology has been outclassed by the effective operation of
the PPG 16 system that will continue.
APPENDIX B
LIST OF PILOT PROJECTS
1ST WAVE
(2004-07) HPD LED
Territory Pilot North Langdale Darnall Steelworks
York West Kenilworth Cornish Bridges Godolphin Taunton Diocese
Arnos Grove Cemetery The Weld Estate, Dorset The Fursdon Estate,
Devon South Hampshire Water Meadows London Underground Centre
Point Rochester Cathedral Canterbury Cathedral East Holkham Hall
RAF Scampton MoD Shoeburyness (Foulness) Foxton Locks UEA.
2ND WAVE
(2008-10) A&G TEAMS LEAD
Territory Pilot North Belsay Hall, Northumberland
Roche Abbey, Yorkshire Byker Estate, Newcastle Pocklington Canal,
East Yorkshire Goodshaw Chapel, Lancashire (EH) West Old Sarum
(EH) Guildhall, Bath Wroxeter, Shropshire (EH Birmingham Civic
Buildings tbc South Porchester Castle, Kent (EH) Canterbury Cathedral,
Kent London Fire Brigades East Burgh Castle, (EH) Orfordness,
Suffolk Bolsover Castle, Derbyshire (EH) Lincoln Castle.
| 
