Memorandum submitted by ICOMOS-UK
1. ICOMOS-UK'S
INTEREST
Our parent body ICOMOS is an advisor to UNESCO
on World Heritage sites (WHSs) and in the UK, ICOMOS-UK offers
advice to English Heritage, Historic Scotland and Cadw on aspects
of World Heritage. We therefore have a specific interest in the
implementation of the World Heritage Convention 1972, in the UK.
Our main interest in this Bill relates to its
impact on World Heritage sites (WHSs). These are sites that have
been inscribed on the World Heritage list for their international
significance and for their value to mankind for both present and
future generations. They represent the pinnacle of the UK's heritage
assets, and have Outstanding Universal Value as defined by UNESCO.
The correct conservation of WHSs and the integration of their
planning impacts, management, and sustainability is reached by
lengthy consultation among local and national stakeholders. The
manner of their nomination and management, to a significant degree,
sets a paradigm for the registration, conservation planning and
management of lesser heritage sites in the United Kingdom. There
is thus an obligation to sustain these sites in the long term.
ICOMOS-UK considers that this status and the obligations of the
World Heritage Convention, 1972, should be reflected in statutory
recognition through national protection.
The UK has been a strong supporter of the World
Heritage Convention. ICOMOS-UK would like to see an exemplary
system in place in the UK to give adequate protection to WHS.
We consider that this protection should include not only national
protection but also the adoption of planning aspects of WHS Management
Plans into local plans and the appointment of a statutory consultee
to monitor developments within WHSs.
Below are given details of our views on the
following aspects of the draft Bill:
— Lack of Protection for WHSs
— Implications for changes from Certificate
of Immunity to No intention to Register
— Provisional Registration
and an initial response on the DCLG Protection
of World Heritage Sites: Consultation Paper.
Our task in providing comments to the Select
Committee by the deadline of 16 June has been made difficult by
the timetable for comments on the DCLG "Protection of World
Heritage Sites" consultation paper being different to that
for the draft bill, and by the fact that the draft bill is incomplete,
still not having within it the content which will deal with conservation
areas.
We consider that it would be wholly inappropriate
for this Bill to pass through Parliament without any reference
to and definition of "conservation areas", or without
a reference and definition of "WHS buffer zones" which
are approved by the UNESCO World Heritage Committee as an essential
component of the protection of WHSs.
We will be submitting a fuller response on the
DCLG consultation paper in due course.
2. BACKGROUND
In responding to Protecting our Historic Environment
October 2003, ICOMOS-UK outlined the need for protective area
designations at national level which could protect ensembles not
necessarily meriting individual protection—and which could
be applied to all WHSs.
The ICOMOS-UK Press Release issued when the
White Paper was published in March 2007 welcomed the White Paper's
commitment to:
i. Give statutory protection to WHSs in the
planning system.
ii. Introduce specific call-in notifications
for significant developments affecting WHSs.
iii. Provide, where appropriate, Buffer Zones
for WHSs.
We subsequently submitted in March 2007 a paper
to the DCMS, prepared by ICOMOS-UK and World Heritage Coordinators,
on measures needed to protect WHSs, and detailed measures needed
to be addressed by any Planning Circular.
We also submitted in March 2008 comments to
DCLG on proposals for revised call in procedures for development
proposals within WHSs, a copy of which is enclosed.
3. LACK OF
PROTECTION FOR
WHSS
The overall thrust of the Bill is that there
will be a single combined register of heritage assets. Clause
1 of the Bill defines heritage assets as:
(a) a heritage structure as defined by section
2;
(b) a heritage open space as defined by section
3;
(c) a world heritage site as defined by section
45; and
(d) a marine heritage site as defined by
section 47.
Section 45 says:
(1) In this Act "world heritage site"
means any cultural heritage or natural heritage within the meaning
of Articles 1 and 2 of the World Heritage Convention that has
been included in the World Heritage List mentioned in Article
11 of that Convention.
(2) In this section "World Heritage
Convention" means the Convention concerning the Protection
of the World Cultural and Natural Heritage adopted by the General
Conference of the United Nations Educational, Scientific and Cultural
Organisation at Paris on 16 November 1972.
Paragraph 78 says that:
"The register must indicate, as respects
each heritage asset included in the register, whether the asset
is a heritage structure, heritage open space, marine heritage
site or world heritage site."
And paragraph 210 adds:
For the purposes of subsection (2)(a) each of
the following is a registered heritage asset:
(a) a registered heritage structure;
(b) a registered heritage open space;
(c) a registered marine heritage site; and
(d) a world heritage site.
However the crucial text for World Heritage
sites is however in Explanatory Note 78 which "says:
78. This clause [that is 45] defines what constitutes
a world heritage site for the purposes of this Bill. As set out
in clause 1 of this Bill, details of world heritage sites in England
and Wales shall be entered into the heritage registers for England
and Wales respectively. The fact of such inclusion will not subject
them to any protection regime and is simply a record of their
existence." (emphasis added)
WHSs will be included in the Register as a "heading",
within which individual heritage assets will be protected. The
Draft Bill thus sets out that WHSs will be merely listed as assets
without giving them any additional protection.
ICOMOS-UK considers that this measure will not
benefit WHSs.
It is not clear from the draft Bill whether
the statement of Outstanding Universal Value (OUV) for a World
Heritage Site, its buffer zone and its setting, for which the
Government has successfully applied to have inscribed on the World
Heritage List, will be part of its description as a heritage asset.
Under clause 4 it is set out that the criteria
for determining special interest for heritage structures and heritage
open spaces are to be published by a heritage authority. No mention
is made of WHSs and it needs to be clarified that the criteria
are those of the World Heritage Convention and the decision on
which criteria are met the right of the UNESCO World Heritage
Committee alone, to which, for each WHS in the UK, the Government
is committed after wide consultation with local and national stakeholders,
in accordance with the requirements of the UNESCO Operational
Guidelines.
Issues
The lack of specific statutory protection for
WHSs is, in the view of ICOMOS-UK, highly unsatisfactory. WHSs
are inscribed for the benefit of both present and future generations.
Currently some parts of existing WHSs are without any statutory
protection and are only protected by local plans, which are not
fixed for the long-term.
Overall ICOMOS-UK considers that links to planning
in the draft Bill are weak. We consider that, particularly for
World Heritage sites, there is a need for relevant government
departments to work together to ensure the protection of WHSs
is at the centre of the planning system.
The Planning Circular which has recently been
put out for consultation sets out amendments to the General Development
Order to include WHSs as Article 1(5) land under the Town and
Country Planning Order 1995. This is said to means that they will,
in this respect, be equivalent in planning terms to other protected
areas such as conservation areas, National Parks and AONBs and
small changes such as to windows will be controlled. However the
status of the designations listed vary from national (National
Parks) to local (Conservation areas) and thus the level of protection
could vary significantly. Currently conservation areas have in
practice limited protection and within National Parks there is
very limited control of vernacular features unless they are subject
to specific protection.
ICOMOS-UK considers that WHSs should be given
national protection.
In its initial comments on the White Paper,
ICOMOS-UK pressed for nationally designated conservation areas
which could apply to all WHSs, thus giving them national protection—rather
than local protection which applies currently to Conservation
Areas.
The draft Bill allows for open spaces in England
that are gardens, parks or battlefields to be Heritage Assets,
if they are considered to be of "special historic, archaeological,
architectural or artistic interest". (see clause 3 (2)).
In Wales any land may be a registrable open space and this land
may include buildings or registrable structures. (clause 3 (3)
& (4)). In the case of Wales, it could be argued that WHSs
could be registered as heritage open spaces.
For England the definition of heritage open
space should be widened to allow it to include land of special
historic, archaeological, architectural or artistic interest—which
would in effect be to create a conservation area with national
protection.
Heritage Asset Consent (HAC) will be required
for works to registered structures which might impact on their
special interest (clause 86). First it needs to be established
that this applies to WHSs, as under Clause 4, which defines special
interest, only heritage structures and heritage open spaces are
mentioned, and not WHSs or marine heritage sites. If it does apply
to WHSs, then it needs to be made clear—whether they are
considered a single heritage asset or a basket of several heritage
assets, and how the impact is to be measured against their OUV
and the attributes that carry their OUV.
4. IMPLICATIONS
FOR CHANGES
FROM CERTIFICATE
OF IMMUNITY
TO NO
INTENTION TO
REGISTER
The current certificate of immunity will be
changed to a certificate of "No intentions to Register".
This is set out in clauses 39 and 40 for structures and land and
include:
A heritage authority may on the application of
any person issue a certificate under this section in respect of
any land.
(2) A certificate under this section is a
certificate stating that the heritage authority will not, at any
time within five years beginning with the date on which the certificate
is issued, include the land in question in its heritage register
as a registered heritage structure or as part of a registered
heritage structure.
(5) Where a certificate has been issued under
this section, the heritage authority must not, at any time within
five years beginning with the date on which the certificate is
issued, include in its heritage register as a registered heritage
structure or as part of a registered heritage structure:
(a) the relevant land or any part of
it; or
(b) anything beneath (or above) the
relevant land.
Explanatory note 74 says:
Clauses 39—40 introduce provisions for
"certificates of no intention to register" (CNIRs) which
replace and extend what were previously known as Certificates
of Immunity. Once granted, a CNIR prevents the land to which it
applies from being registered as either a heritage structure (clause
39) or an open space (clause 40) for a period of five years from
the date on which the certificate is issued. Anyone can apply
for a CNIR, and the certificate applies to the land, anything
beneath the land, and anything above it, unless the certificate
explicitly provides otherwise.
Issues
The concern here is that the certificate of
No Intention to Register could be applied for within Conservation
Areas or within WHSs. There is currently no presumption that a
Certificate of No Intention to Register will not apply within
Conservation Areas or WHSs. This leaves open the possibility that
areas either within Conservation Areas or WHSs could be in effect
be designated non-protected areas. When combined with the lack
of protection for WHSs and the potential changes in Conservation
Area arrangements (see below), this is a cause for concern.
5. CONSERVATION
AREAS
Explanatory Note 278 sets out the first of two
proposed changes for Conservation Areas:
This part of the Bill will provide for Conservation
Areas to be designated as currently, except that it will now be
possible to designate a Conservation Area on the basis of special
archaeological and artistic interest as well as special historic
and architectural interest, but will not replicate the provisions
relating to Conservation Area Consent in the Planning (Listed
Buildings and Conservation Areas) Act 1990. Instead, amendments
to the Town and Country Planning (General Permitted Development)
Order 1995 will have the effect of requiring planning permission
to be obtained for the demolition or partial demolition of buildings
in Conservation Areas. (emphasis added).
Clause 279 sets out the second proposed change:
This section of the Bill will contain provisions
to reverse the outcome of the case of South Lakeland District
Council v Secretary of State for the Environment and Carlisle
Diocesan Parsonages Board [1992] 2 WLR 204 in which it was held
section 72 of the 1990 Act does not require local planning authorities
to insist that developments are beneficial to conservation areas,
merely that they do not harm them. This section of the Bill will
provide that change that does not benefit the conservation area
will not be considered to be appropriate. (emphasis added)
Issues
ICOMOS-UK has concern over the implications
of changes in arrangements for demolitions. Currently there is
a presumption against demolitions in Conservation Areas. What
is now being proposed is that planning permission should be obtained
for demolition. As retrospective planning permission could also
be obtained, this leaves open the possibility that owners could
find it beneficial to demolish buildings and then apply for retrospective
permission to regularise the situation.
It must be recognised that demolition of heritage
assets and their "historic, archaeological architectural
or artistic interest" cannot be restored after demolition,
as is incorrectly claimed by Clause 29 concerning HAENs. These
offences must therefore be dealt with as under the present law
as a serious criminal offence, since planning permission carries
lesser penalties for non-compliance.
Clause 279 refers to developments but concludes
that change should be beneficial. It is not clear if change includes
demolition; and this needs clarification. Such a presumption that
change should be beneficial does not apply to WHSs and clearly
should do so.
ICOMOS-UK would like to these details in the
final Bill.
6. PROVISIONAL
REGISTRATION
The draft Bill provides in paragraph 11 for
the provision of a list of sites that might be put out for consultation
by a heritage authority as possible heritage assets. These have
to be a registrable structure or a registrable open space. There
is no mention of WHSs in this regard.
As WHSs can become registrable assets, ICOMOS-UK
considers that there needs to be a link between the Tentative
List process and Provisional Registration of World Heritage assets.
7. DCLG "PROTECTION
OF WORLD
HERITAGE SITES"
CONSULTATION
The White Paper stated that it was the intention
to update planning policy to strengthen consideration of WHSs
in the planning system (para 53) and to introduce a new Planning
Circular which will be part of a revision of part of PPG 15. This
planning circular is said by the White Paper (para 54) to recognise
in national policy the need to protect WHSs and to make "more
prominent" the need to create management plans and "where
needed" buffer zones, and to clarify the impact of Design
and Access Statements in relation to WHSs.
8. The DCLG Protection of World Heritage
Sites: Consultation Paper, which includes a Planning Circular
and draft English Heritage Guidance note has now been put out
for consultation and ICOMOS-UK will be commenting. In particular
we consider that this should include:
1. Article 4(1) Directions to remove permitted
development rights as a matter of course for WHSs that become
Article 1(5) land.
2. Consideration of the roll out of Article
1(5) land into buffer zones where clearly delineated within cartographic
boundaries. Where the buffer zone is defined as a conservation
area inclusion of Article 4(1) for areas with WHSs within them.
3. Clear guidance on scope and extent of
the potential to promote protection for WHSs within RSSs, UDPs
and LDFs alongside shared representation with EH support at EIPs,
where needed.
4. Formal adoption of buffer zones and wider
setting, clearly defining their extent independently or as part
of management plans and the planning weight to be accorded to
such designations.
5. Adoption of the appropriate parts of management
plans as SPD.
6. Guidance on notifying UNESCO on major
developments.
7. Controls on farming, including major agricultural
buildings, and forestry in WHSs.
8. Regulations for infrastructural development
affecting WHSs.
June 2008
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