Select Committee on Culture, Media and Sport Written Evidence


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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