Memorandum submitted by Dr Philip Whitbourn
OBE
SCOPE OF
THE DRAFT
BILL
The scope of the draft Bill, as published, seems
highly unsatisfactory, not least because it is woefully incomplete,
with key areas missing. Also, as it currently stands, the Bill
is badly skewed, with some thirty pages devoted to the special
interest subject of Marine Heritage; only about one third of a
page to internationally important World Heritage Sites; and nothing
at all to the key subject of Conservation Areas.
CONSERVATION AREAS
In her foreword to the March 2007 White Paper
on Heritage Protection the then Secretary of State commendably
opened with the words: "The historic environment matters
to all of us. It tells us who we are and where we have come from.
It gives identity to our villages, towns and cities".
For the past forty years or so, Conservation
Areas have rightly been at the heart of our heritage protection
system in the very "villages, towns and cities" of which
the Secretary of State spoke. As the law stands at present, the
destruction of buildings of character in Conservation Areas is
controlled through the Conservation Area Consent procedure, under
section 74 of the Planning (Listed Buildings and Conservation
Areas) Act 1990. Demolition without Conservation Area Consent
is currently a criminal offence punishable, ultimately, by up
to 12 months imprisonment, or a fine commensurate with the financial
benefit of the offence, or both. So it is an area where crime
is known not to pay.
Moreover, where planning functions are exercised
in Conservation Areas, there is a statutory duty to pay "special
attention to the desirability of preserving or enhancing the character
or appearance of that area". (Section 72 of the 1990 Act)
Also, English Heritage (alias the Historic Buildings and Monuments
Commission for England) is specifically charged by Parliament,
under Section 33 of the National Heritage Act 1983, with a statutory
duty "to promote the preservation and enhancement of the
character and appearance of Conservation Areas situated in England".
So it should seem almost unthinkable for a so-called
"Heritage Protection Bill" to be published, without
a single clause on Conservation Areas.
Yet, the only mention of Conservation Areas
in the published document appears in two brief references in the
explanatory notes that are specifically stated not to form part
of the Bill. On page 134 it is said that, when introduced, the
Bill will contain additional clauses covering Conservation Areas.
These should be there now for proper scrutiny in this key area
of Heritage Protection. Then, on page 191, there are two "additional
explanatory notes" in paragraphs 278 and 279.
CONSERVATION AREA
CONSENTS
Paragraph 278 makes it clear that the additional
clauses would "not replicate the provisions relating to Conservation
Area Consent" in the 1990 Act. Instead, amendments to the
General Development Order would be made, requiring plannmg permission
to be obtained for the demolition of buildings in Conservation
Areas. That would be a fundamental change, not only because it
would take such control out of its present position in the primary
legislation, and relegate it to a less secure Statutory Instrument.
The potentially really serious fundamental difference here is
that whereas demolition without Conservation Area Consent is a
criminal offence, work without planning permission is not. In
other words, the effect of such a change could be to legalise
unauthorised demolition in Conservation Areas.
The remedy for dealing with works without planning
permission is through the enforcement procedure. This can be a
fairly blunt instrument at the best of times. However, the owner
of, say, a house built without planning permission, may run the
risk of being made to pull it down. On the other hand, no amount
of enforcement action can bring back an old building that has
been destroyed. Replicas are never the same, even in the unlikely
event of accurate record drawings being available.
One possible way out of this problem might perhaps
be for the primary legislation to make the demolition without
planning permission of buildings in Conservation Areas a criminal
offence, punishable by the present penalties. In the absence of
a proper Bill, with the relevant clauses included, the matter
remains a serious source of anxiety.
WORLD HERITAGE
SITES
While Conservation Areas are absent from the
draft Bill altogether; the treatment of World Heritage Sites is
scarcely any better, and is perfunctory in the extreme. The Explanatory
Note 78 on page 148 admits that clause 45 does no more than record
the existence of such sites. The note also states that inclusion
of such sites in heritage registers "will not subject them
to any protection regime". So what, it may well be asked,
sort of "Heritage Protection Bill" is that, and what
sort of message would it send out to the international community
about the way in which the UK treats its most precious Heritage
Assets? Our historic villages, towns and cities generally matter
to us all, as the Secretary of State said. Our World Heritage
Sites have a wider significance, which extends far beyond our
own shores. Sites such as Stonehenge, Hadrian's Wall, and the
City of Bath are important internationally, as well as nationally
and locally. Our Heritage Protection regime should thus treat
them with especial care, and be seen to do so. Clause 45 signally
fails to do any such thing, and the words on page 148 just compound
this failure.
At the very least, consideration should be given
to clauses that would make clear a statutory duty to pay special
regard to maintaining those qualities of universal significance
in World Heritage Sites and their "Buffer Zones", when
exercising planning functions, including the preparation and implementation
of Local Development Frameworks.
In the published draft Bill the whole of Chapter
3 comprises but one clause, with about eight lines of singularly
unproductive text.
"Buffer Zones" around World Heritage
Sites have long had international recognition, but have not so
far had a place in English planning law. The opportunity should
be taken to remedy this situation, with clear and firm primary
legislation. Reliance, in this internationally important field,
should not be placed solely on the second-best expedient ofplanning
circulars and the like.
DRAFTING
The wording of the draft Bill seems not only
laborious but, at times, unnecessarily obscure. On the same page
as clause 45, for example, clause 44 reads:
44 Relationship between requirements of Chapter
2 and general duty:
(1) Section 1, so far as requiring English
Heritage:
(a) to include and retain in the heritage
register for England registrable structures and registrable open
spaces which it considers to be of special historic, archaeological,
architectural or artistic, interest; and
(b) not to include or retain in that register
registrable structures and registrable open spaces which it does
not consider to be of special historic, archaeological, architectural
or artistic interest, has effect subject to any relevant duty
under this Chapter.
(2) For the purposes of this section, a relevant
duty under this Chapter is any duty of English Heritage arising
from this Chapter:
(a) to include or retain in the heritage
register for England a registrable structure or registrable open
space which it does not consider to be of special historic, archaeological,
architectural or artistic interest; or
(b) to remove from or not include in that
register a registrable structure or registrable open space which
it considers to be of special historic, archaeological, architectural
or artistic interest.
This clause makes no mention of the Secretary
of State. Yet it appears from explanatory note 77 on page 148,
that the main purpose of the clause is to afford the Secretary
of State reserve powers to direct that an item be included in,
or removed from, the Heritage Asset Register in the event of a
disagreement with English Heritage. If that is indeed the case,
it would seem preferable that the clause should say so in clear
and unambiguous terms, specifically mentioning the Secretary of
State.
HERITAGE REGISTERS
Clauses 1-85 of the draft Bill contain somewhat
cumbersome-looking proposals for the registration of "Heritage
Assets" of various kinds. Under the arrangements put forward,
responsibility for according statutory protection to historic
buildings and monuments would pass from the publicly accountable
central government, advised by English Heritage, to the expert,
but publicly unaccountable, English Heritage. Clause 78 provides
for the Secretary of State to make regulations about the form
of the register, and the information it must contain. The notes
do not expand on this, but a "likely" format is shown
in Annex 1 of the White Paper. That exemplar runs to eleven pages,
including some quite detailed history, descriptions and other
information. If such an exemplar were to be followed universally,
it could represent a huge amount of work, not all of which may
be necessary. More worryingly though, such work would need to
be meticulously done, if it were not to run the risk ofbecoming
a hostage to fortune, in the event of a Public Inquiry. Planning
Silks and hostile expert witnesses could well have a field day
with a key document of this kind, were it to be found that it
could not withstand the scrutiny of being put under their legal
microscopes.
FINANCIAL ANXIETIES
Detailed registers could also prove time-consuming
and expensive to produce, collate and update. Serious concerns
have already been expressed about whether levels of funding would
be sufficient to operate the envisaged system properly.
SPECIAL LOCAL
INTEREST
Local Listing under clause 215 might, if properly
thought through and given real meaning, prove to be an interesting
concept. At present, Local Lists have only any serious value within
Conservation Areas, where demolition control exists. However,
note 258 on page 187 does not seem encouraging. The note makes
it clear that recognition as an asset of special local interest
would not mean that it would be included in the heritage register,
or subject to the consent regime. So, as matters stand in the
published Bill, the proposal would appear somewhat meaningless.
TRANSITIONAL AND
MISCELLANEOUS PROVISIONS
Of the several section still missing from the
draft Bill, one is headed "Consequentials, Miscellaneous
Provisions, Transitionals". Paragraph 285 explains that "this
section will contain those provisions identified as appropriate
for inclusion before introduction". In the absence of those
provisions, it is of course not possible to reach a view on whether
they would be "appropriate" or not. Nevertheless, they
could be of great importance, not least where the status of the
present lists and schedules are concerned. As yet unidentified
"Miscellaneous Provisions" could also prove a worry.
AIMS OF
THE DRAFT
BILL
Explanatory note 3, on page 131, claims that
the Heritage Protection Bill has been "designed to reform
and unify" the heritage protection systems that exist. This
seems to be the aim, and to be based on the presumption that reform
is necessary, and unification desirable. On the other hand it
could be held that reform is not, for the most part, particularly
necessary, nor unification necessarily desirable. The present
heritage protection system has evolved organically from the scheduling
of mainly prehistoric monuments in England in 1882; followed by
the listing of buildings at the end of the Second World War, and
the introduction of Conservation Areas in the 1960s. Also in the
1960s came the present Listed Building Consent procedure. All
of that was generally in response to real concerns felt by the
public at the time. It seems highly questionable whether much
public clamour for drastic reform exists today. On the whole,
the present system works reasonably well. Listed Building Consent
is a clearly understandable title, as are Conservation Area Consent
and Scheduled Monument Consent. All involve somewhat different
considerations and, quite often, different areas of expertise.
Nor would it be helpful to mix up English terrestrial conservation
law with Welsh and marine systems.
"Heritage Asset Consent" could risk
causing greater confusion, especially as some works would always
need consent, others only sometimes, while others again, such
as registered Heritage Open Spaces and Marine Heritage, would
not involve Heritage Asset Consent at all.
CONCLUSION
All in all this is a half-baked and incomplete
draft Bill. There is no great urgency or need for reform and,
if change is to be contemplated at all, then it should be on the
basis of a complete and altogether better thought-out document.
If that requires more time, then so be it, as there seems no good
reason to rush through a half-baked piece of legislation. Scope
does exist for improvements to the present system. Better care
for our World Heritage Sites could provide one such improvement,
and a meaningful procedure for Local Listing could be another.
Putting the law back to where it was thought to be regarding partial
demolition, before the Shimizu case, is important, but not necessarily
at the expense of Conservation Area Consents.
June 2008
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