Memorandum submitted by Michael J Coupe
1. GENERAL
The forthcoming legislation represents a fundamental
recasting of heritage protection controls, and aims to integrate
as far as possible the patchwork of separate systems for dealing
with the individual components of the historic environment. Accordingly,
the provision of a unified register and system of consents for
works to heritage assets (ie listed buildings, scheduled ancient
monuments, and archaeological sites) is to be welcomed, insofar
that it represents a significant simplification of the current
arrangements, which are widely regarded as unnecessarily complex.
Even so, it is important to recognise that much of the substance
of the reforms will be delivered through statutory instruments
and new national policy guidance, none of which is available at
present. Similarly, key elements of the Bill have yet to be drafted:
it follows therefore that the broadly supportive stance noted
above must be to some extent provisional on the successful translation
into the Bill of the proposals for dealing with the missing subjects
mentioned in Paras. 276 to 285 of the Explanatory Notes, notably
those relating to conservation areas.
2. RESOURCE IMPLICATIONS
The welcome separation of the roles of Government
and English Heritage envisages the transfer of important responsibilities
to the latter, notably the maintenance of a publicly accessible
Heritage Register defining more closely the extent of the special
interest relating to each heritage asset, and including new criteria
for special archaeological and artistic interests. Similarly,
local authorities will be charged with the task of establishing
and maintaining Local Environment Records, as well as taking on
the main burden for dealing with applications for Heritage Asset
Consent and ensuring that decisions are informed by proper expert
advice. Moreover, both English Heritage and the local authorities
will have to cope with added responsibilities for consultations
and appeals.
Over and above all of this, the introduction
of a new system of statutory controls will involve unfamiliar
terms and procedures, which will require training and the acquisition
of new skills for professionals, administrators and elected members.
It will also be important to ensure that the general public are
kept properly informed, and that they appreciate that that the
introduction of new controls does not signify any weakening of
heritage protection.
In previous evidence to the Committee, I have
drawn attention to the real terms reductions in the core funding
of English Heritage, and have suggested that DCMS, and by implication,
the Treasury, be reminded that Lottery funding was always intended
to be additional to, and not a substitute for, basic core funding.
Contrary to the popular perception that the public sector as a
whole has benefited from generous across-the-board funding increases
since 1997, English Heritage has been a notable exception to this
trend—in real terms, at least. Perhaps it is therefore not
surprising that the organisation made no complaint when it eventually
received a modest increase in its grant-in-aid at the conclusion
of the last Comprehensive Spending Review. This uplift was supposedly
intended to meet the cost implications of the Heritage Protection
Review, but most informed observers consider it to be inadequate,
given that the increase will be eroded by inflation over a three-year
period, and will eventually produce another de facto real terms
cut in core funding. Given also the diversion of Lottery funding
to the Olympics, it is difficult to see how English Heritage will
be able to deliver the new heritage protection system other than
over a significantly extended time-frame.
It is also unclear at present whether or not
the Government has fully appreciated the true extent of the additional
burdens to be imposed on local authorities—notably by the
new duty to create, maintain and enable public access to Historic
Environment Records, and in the eyes of most informed observers,
the need to support their consideration of heritage asset consent
applications by maintaining access to sources of expert professional
advice relating to all the component elements of the historic
environment. Under the provisions of the Bill as currently drafted,
Section 103 appears to suggest that the requirement to obtain
and take account of specialist advice in the handling of heritage
asset consent applications can be discharged by inviting representations
from interested parties. Whilst the input from the national amenity
societies and other specialist organisations should not be underestimated,
such bodies cannot be expected to comment on all applications,
and in any case such an arrangement should not be a substitute
for maintaining sources of in-house expert advice. Moreover, recent
research by IHBC (ie "Quantifying local authority conservation
staffing" [IHBC 2006]) paints a dismal picture of the existing
arrangements for dealing with the less taxing requirements of
the current legislation. In such circumstances, the commitment
by DCMS to fund new burdens is to be welcomed, though to the extent
that the Impact Assessment accompanying the Bill may be overly
optimistic in assessing the likely cost implications, some caution
may well be warranted. Similarly, it is suggested that a proportion
of the costs incurred by local authorities will be met by English
Heritage (egg through an extended programme of training), but
doubts have already been raised above as to the adequacy of the
resources allocated to English Heritage for this purpose. Finally,
the intention to subsume conservation area controls within the
ambit of the planning system, though not yet dealt with in the
current version of the Bill, will also have cost implications
for local authorities. Given that planning falls within the remit
of DCLG, the Committee may wish to inquire whether or not the
Department will be funding any additional burdens falling on local
authorities as a result of changes in their planning responsibilities
contingent on the heritage protection reforms.
3. CONSERVATION
AREAS
Conservation areas are the places that communities
connect with most readily. It is therefore no accident that conservation-led
regeneration has helped to create attractive places where people
want to live, work, visit, and spend their leisure time, thereby
underpinning a market-led return to urban living, and a full realisation
of the urban potential of our existing built-up areas in accordance
with sustainability principles, whilst limiting outward encroachment
on to greenfield sites. The historic environment has therefore
emerged as an important yardstick of quality, a source of local
distinctiveness, a reservoir of attractive buildings amenable
to adaptive re-use (including mixed uses and tenures), and a template
for civilised high density living. In the light of the above,
it is no accident that conservation area grant schemes have been
highly effective in delivering social and economic benefits, as
evidenced by English Heritage research documents (egg "The
Heritage Dividend" [English Heritage][1999 and 2003])
Given the importance of conservation areas,
it is a matter of some satisfaction that the Government has at
last sought to address the unfortunate Shimizu decision, and the
fact that conservation area controls are overly complicated, inconsistent
in their application, and are not fine-grained enough. Although
the section of the Draft Bill dealing with conservation areas
has yet to be drafted (in conjunction presumably with parallel
sections in the Planning Bill), it is clear that conservation
areas can now be designated "on the basis of special archaeological
and artistic interest", and that the reversal of Shimizu
will be addressed by abolishing conservation area consent and
bringing demolition or part demolition of unlisted buildings in
conservation areas within the purview of planning controls. Whilst
such changes are to be warmly welcomed, it is hoped that the new
regime will entail the re-drafting of the rules of materiality
to bring under planning control alterations to the external appearance
of unlisted buildings—including part demolition, covering
such essential features as windows, doors, chimneys etc. Furthermore,
it is recommended that the intended changes to the Town and Planning
(General Permitted Development) Order 1995 should bring demolition
generally within planning control (ie by reducing the extent of
permitted development exceptions), thus obviating the need for
Article 4 directions and the complex procedures they entail.
Finally in this connection, the Government is
to be applauded for its intention to reverse the South Lakeland
decision.
4. OTHER MATTERS
OF DETAIL
Special Interest (Part 1, Chapter 1, Section
4): Although the definition of special interest governing designation
decisions, the need for historic asset consent, and the criteria
for decision-making is to be broadly welcomed, the current legislation
provides that consent is normally required for the demolition
of a listed building, in whole or in part, and for any works of
alteration or extension which would affect its character as a
building of special architectural or historic interest. To be
consistent, therefore, the impact on "character" of
works to a listed building should be reinstated: to do otherwise
would be perceived as weakening existing controls.
Similarly, it is worth noting that conservation
areas are specifically defined as "areas of special architectural
or historic interest, the character or appearance of which it
is desirable to preserve or enhance". In the interests of
consistency, therefore, the effect on character should be retained
as part of the assessment of proposals relating to both listed
buildings and conservation areas.
Registration Procedures for Historic Structures
(Part 1, Chapter 2, Section 4 et seq.): The inclusion of all current
listed buildings and scheduled ancient monuments without amendment
of their physical extent and without further legal process is
to be welcomed, but the need in due course to expand past entries
to the format required for new registrations will require a substantial
injection of resources, and will have to be further supplemented
if English Heritage is embark on the long overdue revision of
outdated "greenbacks", in particular those covering
important historic towns.
The proposal to provide full protection for
heritage assets during the period of provisional registration
is to be warmly welcomed, and it is recommended that similar arrangements
should apply to the designation of conservation areas, and the
identification of what are currently described as locally listed
buildings, when the relevant sections of the Bill are eventually
drafted.
Appeals Against Designation (Chapter 2, Section
25 et seq.): In the event of an appeal to the Secretary of State
against registration, representations have to be sought from appropriate
persons (including English Heritage and the national amenity societies),
but where a determination is made reversing a decision of English
Heritage, although the Minister is required to take account of
the published criteria for registration and advice from consultees,
there must be strong grounds for advice to be available to Ministers
from appropriately qualified specialists retained directly by
the Department, and for that advice to be taken into account.
It is also important to ensure that English
Heritage is not overly conservative in responding to requests
for registration, either for fear of the possible political consequences
(egg less than wholehearted support at the time of the Comprehensive
Spending Review), or because financial constraints might affect
its ability to defend decisions on appeal.
Certificates of No Intention to Register (Section
39): The difficulty here is how to deal with potential heritage
assets that are not readily visible or are underground. Ministers
currently complain about the continued prevalence of spot-listing,
requests, particularly when made once development proposals are
far advanced, but important historic fabric not visible on initial
inspection is often revealed only when more recent structures
have been removed. Similar considerations apply to underground
archaeology.
World Heritage Sites (Chapter 3, Section 45):
If the intention to strengthen the protection of World Heritage
Sites promised in the White Paper is to be delivered, contrary
to the sentiments expressed in the Explanatory Notes, there are
good grounds for linking the control mechanisms to those being
developed for conservation areas.
Offence of Contravening Section 86 (Part 2,
Chapter 1, Section 89): The introduction of ignorance as a defence
against an alleged contravention of Section 86 is not acceptable.
In the long term, when all entries on the Register have been updated
to provide a proper account of the extent of the special interest,
and access to all the items on the Register has been made available
(including access on-line), then such a defence would clearly
lack credibility; for the present, however, given the brevity
of early list descriptions, and the likelihood that many owners
might not have been made aware of a building's listed status,
such a move would be highly dangerous.
Determination of Applications by Officers (Chapter
2, Section 113 (5)(b)): It is essential that officers with delegated
authority to determine applications should be professionally qualified
and appropriately experienced to deal with the specific categories
of application under consideration.
Review of Officer's Decision (Chapter 2, Section
115 (4) (e)): The establishment of a Local Member Review Body
to reassess delegated decisions reflects a parallel system currently
proposed as part of the Planning Bill. Provided that the Review
Body is advised by appropriately qualified professionals, and
its remit is limited to cases where there have been objections
to a particular proposal, then such a procedure might be acceptable
(ie analogous to the referral of a delegated decision on a planning
application to the full Committee in the event of objections being
received). On the other hand, if this is to be extended to cover
cases where an applicant has appealed against a decision, then
such cases should not be "second-guessed" by the same
authority, but proceed to appeal in the normal way, subject to
the views of the national body.
Heritage Partnership Agreements (Part 3, Chapter
1, Section 157 et seq.): The establishment of Heritage Partnership
Agreements is to be welcomed, but it is essential that the national
amenity societies are consulted in the process of setting up such
Agreements.
Special Local Interest (Part 5, Section 215):
as yet, the commitment to protect locally designated buildings
from demolition has not been realised in the Draft Bill, or in
the concurrent Planning Bill. Similarly, local heritage structures
provisionally selected for registration do not appear to have
been afforded interim protection from demolition.
Contrary to the suggestion that "it is
likely that local authorities will hold separate informal lists
of assets of local interest in their area, but this will not be
a legal requirement" (Explanatory Notes 258), it is recommended
that the preparation of such lists should indeed be a legal requirement,
that they should be included in the Historic Environment Record,
and be accessible in the normal way.
Conservation Areas (Explanatory Notes 278—279):
The relevant sections in the Bill, when drafted, should make it
clear that conservation areas must be included in the Historic
Environment Record, and that appropriate character appraisals
and other relevant information should be made readily available
(including on-line). Easy access to such information should militate
against ill-informed development proposals that have so often
proved to be an unnecessary source of conflict between developers
and local authorities, and indeed English Heritage.
June 2008
|
