Enterprise and Regulatory Reform Bill

Memorandum submitted by English Heritage (ERR 27)

1. Summary

1.1 The Enterprise and Regulatory Reform Bill contains a number of provisions relating to heritage planning which are intended to reduce regulatory burdens whilst not affecting the protection of our heritage. These are:

· The power for owners and local planning authorities to make heritage partnership agreements which can give advance consent for minor, routine or repetitive works, reducing consent applications.

· The removal of the requirement for conservation area consent (currently required for demolition in a conservation area) and replacing this with a requirement for planning permission, to reduce duplication of consents.

· The ability to specifically exclude certain features, structures or ancillary buildings from list descriptions meaning, for example, that everything within the curtilage of a listed building is no longer considered automatically protected, and unnecessary applications need not be made.

· The ability to apply for certificates of immunity from listing at any time which means that an owner (or a third party) can obtain an assurance of the status of a building at an early stage without having to apply for planning application.

1.2 These heritage provisions are a small part of the Bill, but together present a sensible package of reforms. They will make it more straightforward to gain heritage consents, while retaining the safeguards that ensure that what is special and important remains protected.

1.3 English Heritage has been working for some years, in partnership with the heritage sector and developers, to secure change to often complicated and unclear processes, which have been developed piecemeal over a long period. This process of heritage protection reform has acted as a focus for dialogue and development of consensus throughout the heritage sector, which is broadly supportive of both of the process of reform, and, as part of that, the heritage reforms set out in the Enterprise and Regulatory Reform Bill (ERR Bill). These reforms were in their essence included in the draft Heritage Protection Bill of 2008, which did not find Parliamentary time, and in that context have been the subject of wide discussion and consultation.

1.4 EH is keen to see these reforms going forward to legislation. Heritage conservation is an objective of the Government’s definition of sustainable development (see the National Planning Policy Framework). It is rooted in communities and provides lasting benefits in terms of community cohesion, environmental quality and economic opportunity. A sound and efficient protection system underpins that objective. We acknowledge the flaws in the current system, which we have been working to address, and welcome this opportunity to make improvements.

2. Background

2.1 The key elements of the statutory heritage protection system for terrestrial heritage assets in England are set out in:

· the Ancient Monuments and Archaeological Areas Act 1979, which provides for the designation of nationally important archaeological and historical sites and monuments as Scheduled Monuments and establishes the Scheduled Monument Consent (SMC) regime to control works to them; and,

· the Planning (Listed Buildings and Conservation Areas) Act 1990, (the 1990 Act) which provides for the designation of buildings of special architectural or historic interest as Listed Buildings; establishes the Listed Building Consent (LBC) regime to control works to them; and, establishes the system for the identification and designation of conservation areas by local planning authorities, and control of demolition of unlisted buildings in conservation areas through Conservation Area Consent (CAC).

Listing buildings

2.3 A 'listed building' is a building, structure or erection that has been judged by the Secretary of State for Culture Media and Sport to be of special architectural or historic interest. The up-to-date list is available as part of the National Heritage List for England. The list includes a wide variety of structures, from castles and cathedrals to milestones and village pumps. When a building is listed, it is listed in its entirety, which means that both the exterior and the interior are protected. In addition, by law any object or structure fixed to the building, and any object or structure within the curtilage of the building, which although not fixed to the building, forms part of the land and has done so since before 1 July 1948, is to be treated as part of the listed building. This extension of protection applies whether that further building, structure or object (alone or in conjunction with the principal building) holds any special architectural or historic interest or not.

2.4 Listed building consent is a type of planning control that applies in addition to any planning permission requirements that would normally apply. The controls apply to any works for the demolition of a listed building, or for its alteration or extension, in any way which is likely to affect its character as a building of special architectural or historical interest.

2.5 There are currently c 375,000 l isted b uilding entrie s equating to c 500,000 individual l isted b uildings and c 20,000 s cheduled m onuments in England .

2.6 Demolition of an unlisted building in a conservation area currently attracts an additional consent requirement under the provisions of the 1990 Act: conservation area consent. Applications for these consents are frequently decided alongside an application for planning permission for redevelopment of the site.

3. Better Heritage Regulation under the Enterprise and Regulatory Reform Bill

3.1 The proposed changes to the legal framework protecting heritage in England in the Enterprise and Regulatory Reform Bill have their roots in the draft Heritage Protection Bill 2008. This in turn was the product of an overall reform process – "heritage protection reform" - that English Heritage has been leading and implementing over the past twelve years, intended to make the systems we have for the protection and management of heritage fit for purpose for the twenty first century. These legal systems and processes have grown up incrementally over many years. This has created some complexity, doubt and inefficiency in their application.

3.2 The heritage protection reform process has been based on a culture of engagement and partnership across the heritage sector, and an acknowledgement that in this well established system all those who play a part in it, including consultants and owners, amenity societies and voluntary groups as well as local planning authorities and English Heritage, normally do so responsibly and knowledgably.

3.3 After the Heritage Protection Bill failed to get Parliamentary time in 2008, reform has continued in non-legislative areas, for instance through updating and streamlining planning policy in Planning Policy Statement 5, "Planning and the Historic Environment", and subsequently in the heritage aspects of the National Planning Policy Framework, and in relevant practice guidance produced on behalf of the heritage sector by English Heritage. The National Heritage List for England in 2011 published all designated heritage assets, for the first time side-by-side in a searchable form online, and including a plan. This has been a great step in achieving transparency and accessibility about what is protected and why. However, legislative change is needed to take the reform process further, and momentum for reform continues under the banner of "Better Heritage Protection".

3.4 The proposals in the Enterprise and Regulatory Reform Bill are:

· Heritage partnership agreements (also known as statutory management agreements)

· The removal of the requirement for Conservation Area Consent.

· The ability to specifically exclude certain features, structures or ancillary buildings from list descriptions

· The ability to apply for certificates of immunity from listing at any time

3.5 These are proposals that were contained in the draft Heritage Protection Bill, and are discrete changes that can be implemented outside the thoroughgoing reform that that that Bill contained while still being of value in achieving improvements. They were picked up as recommendations of the Penfold Review carried out by the Department for Business, Innovation and Schools, details of which can be found at http://www.bis.gov.uk/penfold.

3.3 The reforms are brought in by clause 50 and schedule 16 of the Bill as introduced.

4. Heritage Partnership Agreements (HPAs)

4.1 Known also as statutory management agreements, these new arrangements will provide a local planning authority (LPA) and an owner with a means of agreeing various matters concerning the management of a listed building, or group or complex of listed buildings. Their most important function will be in agreeing in advance what works of alteration or extension are to be given listed building consent. They cannot cover works of demolition. Since they can, by mutual agreement, last many years, they are an efficient means of giving listed building consent for works of a minor routine or repetitive nature.

4.2 Non-statutory HPAs have been piloted and rolled out by English Heritage over the past eight years. These pilots have demonstrated benefits for the partners to HPAs of medium term clarity, mutual understanding and consistency of approach, and savings [1] stemming from these improvements. There was subsequently provision for statutory management agreements in the draft Heritage Protection Bill of 2008. Since then English Heritage has continued to promote the use of non-statutory HPAs on those sites that are subject to multiple applications for consent for minor works on a regular basis. Over the last four years non-statutory HPAs have continued to be developed at a number of sites, led by enthusiastic partner organisations such as British Waterways (soon to become Canal and Rivers Trust), where their long term benefits have been recognised. Anecdotal evidence suggests that there are further owners of major heritage assets who are prepared to step forward and sign up to an HPA if statutory status is achieved, and any up-front investment of time to set it up will be offset by the clear savings that avoiding repeat listed building consent applications will bring.

4.3 The attached list of active and prospective HPA projects shows the range of situations where they are considered by owners and managers to be useful. Canal structures have been mentioned. Following the success of the Cornish Bridges and wayside crosses pilot, an HPA for bridges in Devon is also being developed. Large twentieth century buildings such as the Barbican Centre, or Lloyds of London also lend themselves to this approach, as their special interest often resides in communal or formal spaces such as lobbies or boardrooms. Much of the interior is otherwise uniform and undistinguished and able readily be adapted to new configurations and uses. This can be facilitated by the clarity that an HPA can bring. The University of East Anglia pilot indicated that quite substantial savings could be made in the context of a large complex of highly-graded listed buildings, subject to constant maintenance and repair demands. The University has also supplied figures for savings they have already realised by clarifying the need for LBC, as follows;


Number of projects

Construction value £M


(some PP but mostly LBC).


Potential Saving







3 600






9 600






48 000






27 600






27 600






16 800






31 200

4.4 Some concerns were raised during the consultation on the draft Heritage Protection Bill about potential impact of HPAs on special interest, about the scrutiny in the process of agreeing them and about their enforcement. These are understandable concerns. They are addressed in the current proposals as follows:

· The statutory duty to have special regard to the desirability of preserving the listed building that applies to all listed building consent applications will still apply to the consideration of consents to be given by these agreements.

· National policy in the National Planning Policy Framework (NPPF) with its sustainable development objective of conservation of listed buildings will also be a material consideration to which ‘great weight’ should be given.

· The Secretary of State has the power to regulate as to how HPAs will be consulted upon before being signed and what proposed agreements may need to be referred to him for his decision instead of the local authority. In that way the power exists to make the process of creating them subject to the same engagement and transparency as applies to mainstream listed building consent applications.

· Regulation can also stipulate the maximum period of an agreement before an agreement has to be reviewed and resubmitted for scrutiny. A long-stop date provides a means of checking that longstanding permissions are still appropriate.

· The consent given by an agreement may be subject to conditions and any breach of its terms can be enforced in the same manner as any breach of current listed building consent requirements. .

4.5 It is important to bear in mind that there will be no obligation on a local planning authority or owner to enter into such an agreement. The motivation to do so will lie in the potential savings to both. Savings will come from the listed building consents contained within the agreement that will remove the requirement for repeated applications for LBC over the life of the agreement, and will also enable efficient use of the building in a manner consistent with its conservation.

4.6 English Heritage believes there will be considerable benefit to the management of the historic environment by the provision for HPAs. For owners and managers there are clearly savings to be had through the reduction of bureaucratic processes and the provision of a degree of certainty and consistency in the medium to long term. LPAs will benefit from the reduction in administrative processes and will be able to promote the development of a strategic and sustainable approach to the management of heritage assets in their area; a proactive rather than a reactive approach. At present there is a steady uptake of non-statutory HPAs and the ability to make these agreements statutory will give this process a boost by bringing forward potential candidates and allowing the full benefits of a statutory agreement to be realised.

5. Conservation Area Consent replaced with requirement for planning permission

5.1 Demolition of a building in a conservation area currently requires separate conservation area consent. There are some 9,800 conservation areas in England (Heritage Counts 2011). Figures for the numbers of conservation area consent applications decided by planning authorities, collated by the Department for Communities and Local Government show that the numbers for these hover somewhere between 3, 000 and 3, 500 per annum. Figures also suggest that around two thirds of CAC applications are accompanied by an application for planning permission for a replacement structure. The proposal is simply to remove the requirement for conservation area consent and replace it with a requirement for planning permission for entirely the same circumstances to create a more efficient, combined process.

5.2 Concerns voiced at the time of the draft Heritage Protection Bill were addressed in the provisions of that Bill, retained in the ERR Bill, which creates a new crime of failing to apply for planning permission for demolition of a conservation area building. Failure to apply for conservation area consent is currently a criminal offence and since the effect of demolition is hard if not impossible to properly reverse by enforcement notice, it is important the deterrent effect of a criminal offence is retained.

5.3 The new requirement for planning permission can be achieved by amendment of regulations so does not appear on the face of the Bill. The new planning permission will be decided in accordance with the same policy considerations as apply to conservation area consent (principally the NPPF) and will be subject to the statutory duty to pay special attention to the desirability of preserving or enhancing the character and appearance of the conservation area. The justification for and process of conservation area designation is unaffected.

6. Enabling the exclusion of certain features, structures or ancillary buildings from list descriptions

6.1 Currently when a building is listed, structures and other buildings that are attached to it or in its curtilage can be become protected as well, whether the Secretary of State thought they were worthy of protection or not. List entries will sometimes say that a particular feature is not of special interest, but this is currently not definitive. This can lead to considerable debate and confusion as to the extent of listing protection and unnecessary listed building consent applications made out of caution, given the potential criminal consequences of failing to apply.

6.2 The degree of confusion as to what is protected and the economic inefficiency that results is evidenced by a search of case law. A very small percentage of disputes end up with court proceedings and even fewer end up in reported court decisions, yet a search of the English law reports shows over 100 cases involving the curtilage of listed buildings. That is aside from disputes that arise concerning attached structures.

6.3 The amendments in the Bill will allow future new list entries and list amendments to declare that structures or buildings attached to or within the curtilage of the principal listed building are not protected. It will also allow for a part or feature of the principal listed building to be declared definitively as not of special interest. This will allow the Secretary of State to keep the extent of listing protection to that intended at the time of designation. It will not apply retrospectively, so existing list entries will have to be amended to take advantage of the new provisions.

6.4 Both owners and local planning authorities will benefit from clarity as to exactly what is listed, as will the listing system itself by more accurately targeting listing at what really merits protection by specifying the extent of special interest when a building is listed. The extra responsibility for doing so would fall on English Heritage, as the body which administers the listing system and advises the Secretary of State on additions or amendments to the list.

6.5 Concerns have been expressed that this will create an unsustainably large programme of work for English Heritage. Indeed, the number of entries on the statutory list is considerable – some 375,000 listings. It is not possible to estimate the exact number of attached or curtilage listed structures as no surveys have been undertaken of this category of building. This provision will indeed move some burden from the LPA and EH National Planning staff, who currently provide advice to owners on interpretation of the list, to EH Designation staff.

6.6 It is easy to identify categories of structure, such as milestones, street furniture, statues, tombs etc. which are very numerous, but have no curtilage. We can also identify and prioritise the types of buildings which are most likely to generate queries over curtilage structures, where the extent of the curtilage and the number of buildings within it is often a matter of considerable doubt. Examples include:

· Listed houses in towns or villages, including terraced houses (and also house converted, for example, to office or hotel use) with curtilage perhaps including garden walls, garden pavilion and mews buildings, etc.

· Listed country houses (including farm house or country houses converted to office or hotel use) with curtilage including stable blocks, kitchen garden walls, garden pavilions and statuary, barns and outhouses etc.

· Listed shops/office buildings in a town centre with ancillary buildings in back yard.

· Large publicly owned buildings (school, hospital, town hall, defence complexes, universities etc.) with dependent structures, both attached and unattached.

· Factory or other industrial building with ancillary structures, both attached and unattached.

6.7 English Heritage has set out a programme for the next four years to prioritise upgrades to the statutory list to address these categories of building, and will be supported in this by the deployment of resources under the National Heritage Protection Plan (http://www.english-heritage.org.uk/professional/protection/national-heritage-protection-plan/)

7. Enabling Certificates of Immunity from Listing to be sought at any time

7.1 Currently a certificate of immunity from listing (COI), which lasts for five years, can only be sought if a planning application has been made relating to the building. Applications for COIs are small in number - around 20 per annum. A prospective developer is able to submit a planning application for a building prior to acquisition, and many currently make small-scale planning applications for the site in question, often for a flagpole, to allow them to submit a COI.

7.2 The change in the ERR Bill will simply allow certificates of immunity from listing to be applied for at any time, thus removing an unhelpful bureaucratic barrier to gaining clarity over the status of the building.

7.3 While monetary savings are likely to be small in scale, there will be other benefits, such as the scheme going ahead to time and budget, due to increased certainty, and encouraging a culture of open discussions on heritage considerations at the early stages of planning a development.

7.4 The Secretary of State will retain discretion in whether to grant such a certificate. If the application does not show clearly that the building is not of special interest, he may decline the application. This will safeguard against loss of potentially listable buildings due to insufficient understanding.

July 2012

[1] The savings derived from the Cornish Bridges and Wayside Crosses pilot are set out in the Impact Assessment to this Bill as an indication of the benefits that might be derived; exact monetisation of potential HPAs is hard as they will vary between assets.

Prepared 5th July 2012