Localism Bill

Further memorandum submitted by Peter Hayward (L 107)

1. I am writing to make further written submissions regarding the Localism Bill to the Public Bills Committee currently considering this Bill.

2. The last government published details of a draft Heritage Bill in which one of the proposals was for a stay of any development and interim protection for buildings when a listing application had been submitted.

3. As has been pointed out by other memoranda submitted to the Committee, these proposals haven’t featured in the Localism Bill at all.

4. In addition, there have also been submissions made concerning the lack of a proper right of appeal in respect of cases where listing has been refused.

5. I would therefore urge that the Committee consider these additional proposals and possibly include amending clauses to give buildings the subject of any listing application, statutory protection from either development which can be harmful, or demolition whilst the listing process is completed.

6. At present, the only power available is that given to local authorities to give temporary listing status for six months under section 3 of the Planning (Listed Buildings and Conservation) Areas Act 1990 or in cases of urgency under section 4 of that Act.

7. Section 3 and 4 of the Planning (Listed Buildings and Conservation) Areas Act 1990, currently provide:

"3 Temporary listing: building preservation notices.

(1) If it appears to a local planning authority in Wales, or to a local planning authority in England who are not a county planning authority, that a building in their area which is not a listed building-

(a) is of special architectural or historic interest; and

(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

they may serve on the owner and occupier of the building a notice (in this Act referred to as a "building preservation notice").

(2) A building preservation notice served by a local planning authority shall-

(a) state that the building appears to them to be of special architectural or historic interest and that they have requested the Secretary of State to consider including it in a list compiled or approved under section 1; and

(b) explain the effect of subsections (3) to (5) and Schedule 2.

(3) A building preservation notice-

(a) shall come into force as soon as it has been served on both the owner and occupier of the building to which it relates; and

(b) subject to subsection (4), shall remain in force for six months from the date when it is served or, as the case may be, last served.

(4) A building preservation notice shall cease to be in force if the Secretary of State-

(a) includes the building in a list compiled or approved under section 1, or

(b) notifies the local planning authority in writing that he does not intend to do so.

(5) While a building preservation notice is in force with respect to a building, the provisions of this Act (other than section 59) and the principal Act shall have effect in relation to the building as if it were a listed building.

(6) If, following the service of a building preservation notice, the Secretary of State notifies the local planning authority that he does not propose to include the building in a list compiled or approved under section 1, the authority shall immediately give notice of that decision to the owner and occupier of the building.

(7) Following such a notification by the Secretary of State no further building preservation notice in respect of the building shall be served by the local planning authority within the period of 12 months beginning with the date of the notification.

(8) The Commission shall, as respects any London borough, have concurrently with the council of that borough the functions of a local planning authority under this section; and references to the local planning authority shall be construed accordingly."

"4 Temporary listing in urgent cases.

(1) If it appears to the local planning authority to be urgent that a building preservation notice should come into force, they may, instead of serving the notice on the owner and occupier of the building, affix the notice conspicuously to some object on the building.

(2) The affixing of a notice under subsection (1) shall be treated for all the purposes of section 3, this section, sections 5 and 10 to 26 and Schedule 2 as service of the notice.

(3) A notice which is so affixed must explain that by virtue of being so affixed it is treated as being served for those purposes.

(4) The Commission shall, as respects any London borough, have concurrently with the council of that borough the functions of a local planning authority under this section; and references to the local planning authority shall be construed accordingly."

8. In practice, local authorities rarely if ever invoke these provisions, especially as they are concerned with being charged by the owners of properties for compensation whilst the notices are in force.

9. Therefore, these current protections and provisions are wholly inadequate and are based on the whims of local authorities, which in the large majority of cases are reluctant to intervene.

10. Therefore, the case is clearly made out for an automatic statutory stay on development and demolition on receipt by English Heritage for a listing application, and the notice of such an application could also be required to be served on the local authority who could then publish a list of pending applications.

11. In addition, I would also urge that amending clauses be moved to enable rights of appeal to some form of independent tribunal set up for the purpose, to hear appeals against refusals of listing of buildings.

12. This could possibly be part of the Lands Tribunal or some other similar statutory tribunal already in place, so that their functions were extended appropriately to hear such appeals.

13. At present, the only remedy is Judicial Review, which like challenges to planning applications themselves, everyone agrees is a most inappropriate and cumbersome procedure and method for these type of challenges, which often involve factual issues and matters of taste and judgment, which are totally outside the scope of the Judicial Review style regime.

14. At present, amendments might be tabled to amend sections 1-6 of the Planning (Listed Buildings and Conservation) Areas Act 1990.

February 2011