House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by Country Land & Business Association

SUMMARY

(i) Like (we believe) almost everyone in this field, the CLA welcomes the Bill in principle.

(ii) We anticipate that most consultees will say, in essence, that "the Bill is generally good but needs proper resourcing". This Memorandum however does not just say that, because we do not feel that that would be an adequate response.

(iii) Firstly, the heritage protection system is in crisis, primarily (but not entirely) because it is grossly under-resourced in the local authorities who are supposed to operate it. That crisis causes grave problems for heritage on the ground, which need to be addressed. Merely to call for "more resources" is not enough, because in practice those resources will not be forthcoming.

(iv) Secondly, the Bill actually involves (see Appendix 1 section A) substantial net increases in the legal protection of heritage; we question how helpful this would be in improving the real protection of heritage on the ground.

(v) As drafted, we think there is a danger that the Bill might have only a limited positive effect on the effectiveness of heritage protection. We have therefore looked (in Appendix 1) at changes we feel should be made to the detail of the legislation and guidance to ameliorate the current crisis and improve the real protection of the historic environment on the ground.

(vi) Heritage is important. Parliamentary time will not often be available for heritage protection, and it is vital that we make the most effective use of this opportunity.

(vii) Our comments must be provisional at this stage because of course we have not seen all of the Bill, and very little of the secondary legislation or guidance.

THE CLA AND HERITAGE

(viii) The CLA's 36,000 members are individuals, land agents, charities, institutions, and rural businesses. They manage and/or own a quarter to a third of all the listed buildings in England and Wales, and probably an even higher proportion of monuments.

(ix) The CLA is thus by far the largest "owner" stakeholder group. Our members are motivated only partly by profit. Overwhelmingly they have a deep concern for heritage, support its protection, and certainly do not want to see this diminished. This moreover is not just the theoretical interest of the architectural historian or conservation academic: our members are on the front line, along with the local authorities who run the heritage protection system, and with other kinds of owner like the building preservation trusts which take on buildings at risk. Our members cannot just luxuriate in academic debate: they have to manage heritage, and pay for it. Looking after heritage is astoundingly expensive: many of our members are spending tens of thousands of pounds a year[10].

THE FUNDAMENTAL ISSUES

(x) Heritage cannot be protected just by laws and fines (compare the dropping of litter, which is illegal and carries huge fines, but is endemic). What really protects heritage is three things: (a) overwhelming public support; (b) the willingness of a subsection of that public to buy and own it, and to pay for its maintenance; and (c) the willingness of everyone to accept that heritage cannot be frozen: it must be allowed to change.

(xi) All heritage is in constant decay. As above, preventing that is extremely expensive, costing many billions of pounds a year across England and Wales[11]. While public subsidy should be available, on a carefully-targeted basis[12], there are many other priorities for public spending and the amount available for heritage will always be a tiny proportion of its total cost. In the real world, nearly all the money has to come from owners. That requires those owners to be able and willing to pay, because they are happy owning and living in historic buildings or because the buildings are generating the funds, for example as business premises or tourist attractions. That in turn requires a heritage protection system which allows, indeed encourages, appropriate physical changes. The Heritage White Paper of course acknowledges this right at the beginning (section 1.1, point 2: "An effective heritage protection system needs to strike a balance between protecting what is important and enabling appropriate change").

(xii) Heritage law does need improvement. But to change the law alone would be to better arrange deckchairs on the Titanic. The real problem with heritage protection is not the law: it is its implementation and enforcement, and particularly the difficulties and costs people face on the ground when, as above, they need consent to make appropriate changes to historic buildings to make them viable and relevant in the future. These problems are largely the result of a crisis in conservation resourcing in the local planning authorities (LPAs) who take most of the decisions[13].

(xiii) The fundamental problem is that (a) the current system is predicated on the assumption—defensible in theory—that any and every change to the historic environment could be damaging and thus ought to be properly examined and decided by experts, but that (b) in practice the expertise that this examination requires is, in most cases, not available[14].

(xiv) Taking competent and sustainable heritage decisions requires skill and experience. There are few things more valuable to heritage (or its owners) than a really good conservation officer. But in the real world most heritage consent decisions are not taken by conservation staff at all, but by general staff in overworked development control departments. Even where there are skilled and experienced conservation staff, they are usually overworked, often demotivated because conservation has low status in most LPAs, and do not have the time needed to get properly involved in every case. All this has a variety of dire consequences. These include (a) unnecessary costs and delays for owners, which both (b) diverts spending from maintenance and (c) (as important) discourages people from owning heritage at all; (d) a perception that the system is inconsistent and unreasonable; (e) buildings decaying or losing value because their owners think they cannot get consent to alter them; (f) the neglect by LPAs of issues like Conservation Area management; and (g) despite draconian penalties, an apparent epidemic of unauthorised work to listed buildings (because LPAs do not have resources either to help or to enforce, and many owners either do not understand the complexities of the law or, rationally but illegally[15], decide to sidestep "heritage bureaucracy").

(xv) These problems are serious and need to be solved. An obvious (and correct) answer is to call for "more resources" for heritage, as most relevant bodies (including your Committee[16], and the CLA) have been doing for years. The problem with this approach is that in the last decade at least it has been, for built heritage[17], completely unsuccessful[18]: during probably the largest-ever peacetime expansion of public spending, since 2000, resources for heritage have been repeatedly cut in real terms[19]. We are now in an era of tight constraint on public spending, so that increases in heritage spending are still less likely. We have seen DCMS undertakings on resourcing, but it seems unlikely that this is intended to mean that the Department will find the additional sum—perhaps £50 million to £100 million a year—which would be needed to resource local authority conservation provision properly, especially given that local authorities are the responsibility of CLG, not of DCMS. In this context incidentally we note the words "DCMS and English Heritage", which may imply that it is actually EH which will have to find, from elsewhere in its budget, the funding which is actually provided for the new system.

(xvi) The heritage sector certainly should continue to fight for further resources. But we need to ensure that the system will work better even if—as is likely—those resources were not forthcoming. Moreover, Governments are more likely to put further resources into a system if it can be demonstrated to be effective and efficient, and operating to the clear benefit of the public, which is not certain of either the existing or proposed systems. More effective reform will strengthen the case for funding in future.

(xvii) Appendix 1 to this Memorandum therefore sets out changes we think should be made to the detail of the primary and secondary legislation and guidance, both to ameliorate the current crisis and improve the real protection of the historic environment. Most of these changes are concerned with reducing the overall need for resources, and with concentrating resources on the most important assets and the most significant proposals.

APPENDIX 1

SUGGESTED CHANGES TO THE PROPOSALS

For clarity, specific changes we suggest are underlined, and key points are in bold.

A. ARE SUBSTANTIAL INCREASES IN NOTIONAL PROTECTION DESIRABLE?

1. One of the key intentions in the Heritage Protection Review was that it would not involve significant increases, or decreases, in protection. But listing the changes shows at least 20 major or moderate increases in protection, but very few decreases. Of course it is possible to argue about the detail, but it is clear from this list that the proposals in fact involve a large net increase in protection. This is probably from "mission creep", a desire to "tidy up anomalies" and "add tools to the toolkit", rather than deliberate intent.

2. These increases are not self-evidently either "good" or "bad". Many may feel that they must, by definition, be "good". But of course all regulation has consequences, intended and unintended: for example in the tax system, increasing rates beyond a certain level decreases tax revenue, because people stop doing things or avoid the tax. Too much regulation of heritage is self-defeating: if people are less keen to own it because it is seen as expensive, unchangeable, and a bureaucratic nightmare, it deteriorates: its real protection has been reduced. And in the under-resourced heritage sector, having both belt and braces may not be the best policy if it means you cannot afford a shirt.

3. Many of the increases involve archaeology, already well protected; in particular PPG16 puts it in a privileged position, obliging developers to fund archaeological investigations almost irrespective of cost. The removal of the discretion not to schedule will require[20] large amounts of archaeology to be scheduled, even where EH believes it is adequately protected in other ways. In most cases this appears to be a double waste of resources, in the designation and subsequently in the consent process. It would be better to retain this discretion, and to extend the discretion not to register to other types of asset; decisions not to register are normally likely to be competent and sensible.

4. We have concerns about designating areas merely because someone thinks there might be archaeology there[21]. It would be important that such an expectation has a demonstrably sound basis, and is not just based on interpolation or guesswork.

5. The Heritage White Paper talked of abolishing Class Consent 1, which allows ploughing to continue above buried archaeology, but this is not mentioned in the Bill. It is important that any change is sensible and proportionate, based on financial incentives, as advocated in your Committee's Heritage Inquiry in 2006 (recommendation 38).

B. HERITAGE REGISTRATION

Designation descriptions

6. One of the main gains from the new system—in theory—is new-style designation descriptions, setting out what is significant and what is not, and defining the heritage asset in a plan. Everyone will then know what is protected[22], removing the problematic concept of "curtilage" (which means that, where a farmhouse is listed, a nearby barn is usually protected even if it is not even mentioned in the description; this has, unsurprisingly, caused many problems and is one of the key factors bringing the system into disrepute). Secondly, everyone will know what is significant and what is not, and owners can where possible confine change to areas of less significance. The resource savings from reduced uncertainty and better applications are huge.

7. If however plans and new descriptions are not provided for the 400,000 existing entries carried across from the existing lists, these gains would be confined to a small elite of new registrations. All these existing descriptions therefore need to be improved. The resource implications, if spread over say 10 years, are well within the capacity of DCMS. (A cheaper but less good alternative would be to allow owners to request a new-style description, which would concentrate resources on the smaller number of cases where change is actually being contemplated or where "curtilage" is unclear).

8. To achieve this, streamlining of the new-style entries will be required: the example with the White Paper is excellent, but too expensive to research in practice. A new stripped-down style should (a) define exactly what is designated and what is not, with a plan, and (b) say concisely what is and is not significant (guidance must say that saying what is not included and less significant is important, and stress proportionality, ie that less significant assets will, other things being equal, need shorter entries).

9. It is important that, as proposed, it must be possible to register only parts of assets, because that enables non-significant parts (like 1960s plastic conservatories) to be excluded, and that guidance encourages this, so that changes to these parts would then not require consent, significantly reducing the burden on both LPAs and owners.

Grading

10. Reforming the grading system has enormous but largely untapped[23] potential to improve the heritage protection system, by providing an upfront indication of significance for all listed assets at the point at which change is being contemplated. With a comprehensive grading system, LPAs, owners, and amenity groups would be able to assess immediately how significant a heritage asset is likely to be[24], and thus target their scarce resources at the more significant.

11. Firstly, the current system of Grades I, II* and II is familiar to heritage experts but incomprehensible to the general public. If we are trying to democratise heritage, we should make it simpler: Grades A, B, and C are the obvious solution.

12. Most importantly, what is now Grade II should be subdivided. 93 per cent of all listed buildings are Grade II. The current system, in which nobody can tell whether a Grade II building is almost Grade II*, or at the other extreme only just merited designation, is indefensible, and wastes resources on a large scale. As things stand, LPAs often, and arguably should unless someone expensively proves otherwise, treat all Grade II buildings as if they are very nearly II*. Similarly, an Amenity Society in London notified of an application to alter a Grade II building in Yorkshire has no idea whether it should devote its very scarce resources to it. Even new-style register descriptions will not make this clear. But these problems could be easily solved by adopting new grades, say C to G. In no sense could this be said to be "complicated": a child of five could understand it, which could not be said now of Grade II*. Informal contact with EH suggests that it could make designation less fraught, especially at the boundary between the current II* and II, where now there is a huge gulf between II*, exceptionally significant, and II, which might be only just of national significance.

13. It is important to note that we are not suggesting that a Grade G building is unworthy of protection. It would require the same consents as a Grade A building. But consents on a Grade G building would, other things being equal, be easier to obtain, and less resource would need to be expended by the owner, the LPA, and anyone else involved.

14. Owners should be able to appeal the grading as well as the registration, and the grade would not be statutory (so that owners or others could argue that an individual grading is incorrect). But we suspect there would be few grading appeals by owners, and we think it would cut the total number of appeals by owners. At present listing is a potential disaster for owners, precisely because many LPAs treat all Grade II buildings as if they were almost Grade II*. A listing at Grade E, F, or G would be much less threatening, and owners would be much less likely to appeal.

15. Grading should of course also be applied, in the same way, to assets formerly classed as monuments. As with buildings, most should be at Grades C or below (any suggestion that they must all be in the top grade is self-evidently wrong, implying that every lump in a field is as significant as Stonehenge.

Completing registration in England

16. In England, a key problem in the current system is that systematic designation all but ceased some 20 years ago, and tens of thousands of assets meet current designation criteria but are not designated. This is clearly unsatisfactory (a) for these assets, which can potentially be demolished or altered, (b) for owners and developers who may spend time and money developing proposals which have to be aborted because the building is then "spotlisted", (c) for the listing body, because ad hoc "spotlisting" wastes resources, and (d) for the heritage protection system because the decisions tend to be controversial and "spotlisting" should, and does, bring the whole system into disrepute.

17. We are concerned that the new system may be worse. The ability of anyone (under clause 21) to propose an asset for registration arguably only formalises what already happens informally. But advertising this ability is likely to increase the number of applications, the new processes of consultation and Provisional Registration and better descriptions will increase the resources required to handle each application, and each is expensive to handle because they have no geographical logic. The result may be that all EH's allocated resources will be taken up by spotlisting applications under clause 21, leaving nothing for proactive work. The "sift test" for clause 21 applications[25] in practice seems unlikely, given the desire for public involvement and that decisions to refuse to consider an application at all may be controversial, to stop many applications on (say) pre-1918 or even pre-1945 structures. Objectors to development may thus be able to hold up works to almost any unregistered historic structure by requesting registration, even if eventually the asset is not registered. We would question, for these pragmatic reasons, the desirability of clause 21. In any case, it is important that the "sift test" guidance is tough, so that it is clear that there is a substantive a priori case for registration before the registering body has to consume resources.

18. The solution to all these problems is a geographical[26] designation programme, alongside the improvement of existing entries advocated in 7 above. This has been done in Wales[27], and could obviously be achieved in England. It would solve the problems listed in 16 above, and in particular "spotlisting" could all but cease: there would be few clause 21 applications, and most of those would fail the "sift test".

19. It must be said that we would be less keen to see this happen in isolation: however strong their belief in heritage protection, not all CLA members are now keen to see their own heritage assets designated, because they are then subject to the currently appalling heritage consent system. But the new-style descriptions and the other changes suggested here would make that system much more efficient and acceptable.

Provisional registration

20. We see the justification for Provisional Registration while the registration process is underway. But compensation provisions like those in the existing Building Preservation Notice procedure must be carried forward into the new system, because owners and developers will incur substantial and demonstrable financial losses, especially if building work was about to start and compensation has to be paid to a contractor.

Registration: consultation and appeals

21. We welcome consultation of owners within the registration process, and the new statutory right of appeal. Rights of appeal should of course include designations carried across from existing lists; we would not expect there to be many appeals in practice, but it would be unjust if owner A, whose building is registered in 2011, has a statutory right of appeal, but owner B, whose building was listed in 1975, never has.

22. We see the argument for rights of consultation and appeal beyond the owner and occupier, but forsee resourcing problems in practice.

23. Appeal panels must always include people with practical experience of managing and paying for historic buildings, not just architectural historians or conservation academics.

C. THE CONSENT SYSTEM: CONTROL OF WORKS TO HERITAGE STRUCTURES

De minimis changes

24. In the Bill, like the existing legislation, there is still no de minimis provision, like the use of the word "material" in the planning system: anything which affects special interest, however trivially, or beneficially, will always need Heritage Asset Consent (HAC). This means that regulators have little discretion to allow trivial things through ("your proposals look fine, but the law says you must still make an application") and therefore wastes scarce LPA resource[28] on minor applications[29]. In our view a de minimis provision (probably by inserting the word "material" into clause 86) is essential. An apparent objection is that something arguably trivial, like painting one door pink, can have a major effect on special interest. This is of course true, but it misses the point, which is that painting a door pink usually would be material. The solution is good guidance, not a refusal to use the word "material". Consent should not be needed for something which is not material[30]; it is a waste of scarce resources. We suspect that this change might reduce the number of HAC applications by at least a quarter[31].

Class consents and permitted development

25. Similarly, the class consents system (Clauses 93-4) could be used (like permitted development in the planning system, without which the planning system could not function at all because it hugely reduces the volume of planning applications) to grant consent for particular kinds of work (those identified by research as almost always getting consent, or those—like perhaps defined energy efficiency works—otherwise seen as desirable). Again, this could significantly reduce HAC applications.

LPAs and advice

26. We welcome a new statutory requirement for every LPA to "receive expert advice" before taking HAC decisions, but few LPAs could now comply with this without extra resources. Our suspicion is that merely consulting statutory consultees like the National Amenity Societies may be thought sufficient to meet this new duty, even if they do not have the resources to reply (the RIA, moreover, claims that these bodies should not be given even trivial extra funding because they are not obliged to respond). We believe strongly that this new duty should mean what it says, and should be backed up by a statutory statement of conservation provision standards in LPAs. But, as above, we doubt that this is intended or that it will happen.

Financial sustainability

27. As above, heritage cannot survive unless it is funded and used. That the key clause 106 on granting or refusing HAC refers to consulting Historic Environment Records, but not to sustainability, is a victory of the ivory tower over the real world. It is essential that a new subsection (c) is added to clause 106 (4), requiring the sustainability of the asset to be taken into account in consent decisions, alongside the need for its protection. This should be amplified in guidance, but to say this only in guidance is insufficient (in the current PPG15 it is largely lost in an appendix).

Conditions attached to consents

28. The Bill should not contain the long list of sample conditions in Clause 110. There is a real danger than many LPAs would impose most or all of these conditions in a disproportionate way as a "checklist". Suggested conditions should be in guidance, where they can be explained and caveated, not in primary legislation.

Time limits on enforcement and prosecution

29. As in the existing system, the Bill has no clause preventing prosecution or enforcement action after a specified time period, as there is after four or 10 years in the planning system. We know of cases of action being threatened after more than 30 years, and subsequent owners always have a threat hanging over them. Where properties are sold, this aborts transactions, encourages "gazundering", and makes money for solicitors and insurance companies. Four years would be too short, but in our view the new system should prevent prosecution or enforcement action being taken once 10 years have elapsed after the completion of the works.

Appeals and Local Member Review Bodies

30. Clauses 113-6 pick up the provisions in the Planning Bill allowing a LPA to be forced to delegate many (probably most) decisions to its officers, and abolishing the right of appeal in favour of referral to a Local Member Review Body (LMRB) from the same LPA. Both initial decisions and appeals from those decisions being dealt with by the same body will have a corrupting influence on the planning and heritage protection systems, and on public faith in them (not least because the LMRB will usually be advised by the same officers who took the initial decision). This is especially true for HAC decisions, so it is vital that the right of appeal remains.

Heritage Partnership Agreements

31. Whilst we welcome Heritage Partnership Agreements (clauses 157-160), and would like to see them used widely, in practice we expect that LPAs, EH, and owners will not have the resources needed to draw them up, and they are thus only likely to be used for the largest and most complex and high-profile sites.

D. LANDSCAPES AND WORLD HERITAGE SITES

32. We strongly agree that no specific additional consent regime should be applied to landscapes (ie parks, gardens, and battlefields) or World Heritage Sites.

33. But we are very concerned that (a) "making it clear in law that their special interest and their setting is a high priority, not just a material consideration"[32], and (b) the (undefined) restrictions on permitted development rights being sought by EH[33], notably an extension of the concept of curtilage to cover the whole of an open space, potentially create a large increase in bureaucracy.

E. HISTORIC ENVIRONMENT RECORDS, ONLINE REGISTERS, "LOCAL LISTING"

Historic environment records (HERs)

34. In theory, we support the new statutory duty on local authorities to maintain these. But HERs are resource-hungry. They exist for archaeology, which is relatively well-resourced, but are very incomplete for built heritage, which is not. Making local authorities create comprehensive HERs would, if—as we expect—they will not be properly resourced, divert resources from vital other work, to the detriment of actual heritage on the ground. We therefore think an isolated duty on local authorities to maintain HERs is not desirable. Even if funding were available initially, it would fall away but the statutory duty would remain in place. We strongly support a statutory duty on LPAs to have access to effective conservation services, which should include keeping HERs, but as above we do not expect this to happen.

Security implications

35. While we see good reasons to make register entries and HERs available online, some basic safeguards are essential. If thieves can search untraceably for lead or fireplaces or flagstones, then these things will be looted from historic buildings. Cadw have told us that they will include safeguards, but EH have said that they will not consider even the most basic safeguards (like disabling some search terms) in their Heritage Gateway project. Safeguards are essential, or this is an open invitation to loot heritage.

"Local listing"

36. "Local listing" has a role in protecting buildings which do not merit national designation. But it must be simple, certain, consistent, and proportionate, based on nationally-set selection criteria and guidance, and involve consultation of the public and owners. Above all guidance must make it clear that locally listed assets and their settings are not frozen: the "local listing" is a material consideration to be considered alongside other material considerations.

F. NEW GUIDANCE INCLUDING A NEW PLANNING POLICY STATEMENT

37. Clear concise guidance in plain English is all-important in creating a heritage protection system which is workable, efficient, fair, consistent, and proportionate. It would improve the quality of both applications and decision-taking, and greatly reduce the resources required. Potentially this is much more beneficial to heritage than the Heritage Protection Bill itself. In particular, a new Planning Policy Statement (PPS) for heritage to replace PPG15/16 is essential and must be in place before the Bill is implemented. This is of course the key guidance used by EH and LPAs.

G. CONSERVATION AREAS

38. These are a key part of heritage protection. Removal of Conservation Area Consent and (depending on the details) the Shimizu anomaly would be improvements, but would leave a system which is highly complex, often provides inadequate protection, and is, without rights of consultation and appeal, undemocratic. Greater change is needed.

39. We have doubts about adding "specialist archaeological" and "artistic" interest to the existing designation criteria. Is there really a problem whose solution requires this?

40. While we are keen to see Conservation Areas enhanced, we question the reversal of South Lakeland. Given how subjective the judgements are, having to prove that change is "beneficial" is a big hurdle, and in the real world applicants will incur substantial extra costs and a lot of desirable development may not even be put forward. It may be better for guidance to suggest that if a LPA thinks enhancement is needed it should (briefly) say this in its Local Development Framework (or a Conservation Area Appraisal, which the suggestions in this Appendix would free up staff to draw up), in which case this would be a material consideration[34]. Especially important is that law and guidance says that what matters is the net effect: many proposed changes have some negative effects which are more than outweighed by positive effects.

H. TERMINOLOGY

41. It matters that the heritage protection system is not off-putting, or accessible only to lawyers. We feel that most of the new terms are both too different and too long, particularly "Registered Heritage Structure" and "Registered Heritage Open Space", which would be unwieldy even as acronyms. There is no perfect solution, but the best option may be to keep the word "listed", which to most people now implies heritage, so that that word does not need to be used. This would create, for example "Listed Structures" and "Listed Open Spaces".

June 2008