Enterprise and Regulatory Reform Bill

Memorandum submitted by Verina Glaessner (ERR 28)

This response, while welcoming the aim of reducing regulation, especially the duplication of regulation, across a number of primarily commercial sectors, specifically addresses issues arising from Clause 50 and Schedule 16 Heritage Planning Regulation. It is written with the advantage of ownership of a listed building in an urban (London) setting and hence brings with it a degree of practical hands on experience over several decades.

SUMMARY

1 Not enough care is taken in Schedule 16 to delineate in detail, and therefore adequately to recognise and make provision for, the range of benefits which are inherent in, and which follow from, listed status or indeed from local recognition of aspects of the built environment. Nor are the benefits to be derived from the historic built environment itself sufficiently recognised within the Bill.

2 In the light of the above, the expectations regarding the benefits which may follow from development cannot but be unrealistic.

3 The Bill is imprecise in its wording especially in the paragraphs relating to Heritage Partnerships .Recourse to the courts will ensue over what should be matters of reasonable interpretation. Clarity will avoid unnecessary delay and uncertainty for all parties.

OVERVIEW

In this Bill the heritage sector sits in a context which includes, Competition Reform, Mergers and Anti-Trust legislation. The Explanatory Notes published alongside the Bill, while not part of the legislation, state the changes and expected outcomes.

The very specific, and indeed very diverse, nature of the heritage sector and the specific kinds of social as well as economic benefits which this sector delivers across time, to the present generation, of course, but also its potential for delivering those and other benefits to, hopefully, many future generations however, raise quite other issues and expectations than those accruing to the business and financial sector.

Legislation involving nationally and locally important heritage sites is required to respond to their specific potentials in order to ensure that these social goods are not lost but are safely, and indeed economically, delivered.

However, paragraph 377 of the Explanatory Notes, which addresses Paragraph 8 of Schedule 16 concerning the system of Certificates of Immunity from Listing, states that the CILs ‘give certainty to developers and owners by removing the risk of a building being listed at a late stage…thereby causing delay or even the abandonment of redevelopment schemes.’ Would owners inevitably in every, or even, in most cases see listed status as simply and inevitably ‘a risk’?

The use of the word risk is highly contentious implying that the recognition given a building or group of buildings through the listing process is inevitably, and without question, a danger to the achievement of economic and social benefit. The use of the word ‘abandonment’ is inappropriately emotive in this context.

The multiple benefits, and indeed security, given by listed building status is disregarded. Regulation is surely required to be impartial and to recognise that well-being implies availability of a whole range of benefits for the present, and also for future, generations. (see NPPF) The specificity of the benefits yielded by those features of the built environment, designated or undesignated, which fall within the category of heritage must be clearly recognised in legislation. Only when these are recognised can those calculations of benefits arising from development be adequately or accurately weighed against the benefits derived, or potentially able to be derived, from the existing buildings.

CERTIFICATE OF IMMUNITY FROM LISTING

These paragraphs likewise fail to acknowledge the existence of any of the benefits derived from listed status .This blindness results in a Bill which, in these sections, is insufficiently inclusive of all interests involved and insufficiently impartial. A serious flaw. Furthermore, the removal of any restriction on when a COI may be applied for, leaves the role of the community unclear. This sits uncomfortably alongside the recognition given by the Localism Act to community rights in regard to locally important buildings and other aspects of the local environment.

HERITAGE PARTNERSHIP AGREEMENTS

The Bill appears to have conceived Heritage Partnership Agreements primarily in relation to major developments. However, it is also, as drafted, applicable piecemeal to the large number of modest usually grade II listed properties, and in this respect it is particularly ill-thought out. A clearer and more tightly worded version could prove a useful tool in making optimum use of such properties while retaining their historic architectural and social integrity.

The complex of differing forms of ownership, with freeholders, lease-holders, sub-lease holders and tenants all having tenures of a kind, necessitates clarity in defining partnership eligibility, obligations and responsibilities. The Bill lists possible parties to the Agreement .The wording refers to ‘an owner’ and the relevant planning authority’ and states that ‘any of the following may’ also be party to the Agreement. A list of seven categories of person follows at 9A including ‘any person who is involved in the management of the listed building.’ The ‘person…involved...in…management’ of the building has presumably been delegated that duty by an owner and therefore only the principal subject should here be recognised, by way of protecting the legitimate interests of long term residents. The term person should be replaced by person or entity, so that small companies set up by long term residents to manage single buildings are not excluded.

The benefits of long term residents and home ownership to the local and national economy are well recognised. The Bill has the opportunity to be quite precise in recognising those benefits. They entail a willingness to invest in long term improvements to the built environment. Parties to the Agreement should include those for whom as tenants or freeholders the listed building, whole or part, has provided for a significant length of time, and continues to provide, the sole and only place of residence. This should apply whether that ownership or occupation resides in a person or a company comprised solely of resident directors, as suggested above.

Fully qualified opinion should be required especially in the case of Page 214 (5) (a) specifying works that would or would not…affect the character of the listed building as a building of special architectural or historic interest ’and also in relation to knowledge of the structure and building technologies employed. A series of ad hoc agreements could undermine not only the structural viability of the listed building or buildings but also the architectural, and social interest and integrity of the area.

Reasons for termination of the agreement and qualifications for Partnership membership must be clearly laid down in legislation, as must be the requirement to consult.

LISTED BUILDING CONSENT TO FORM PART OF PLANNING PERMISSION

The incorporation of Listed Building Consent within Planning Permission seems workable but implies charging for a hitherto free service: a possible disincentive.

AMENDING SECTION 1(5) OF THE P (LBCA)A 1990 ‘A LISTED BUILDING INCLUDES ANY OBJECT OR STRUCTURE FIXED TO…’

The Bill could make a distinction between historically valuable examples of building technology and post 1945 garden sheds, remembering the reasons for the Act’s caution in this area.

WHY INCLUDE HERITAGE IN THIS BILL?

The wider question is whether Section 50 and Schedule 16 regarding Heritage Planning Regulation are required at all in this Bill. Is there a business case for a further deregulation of demolition? Does not the case of Liverpool, where demolition proceeds apace within the context of current legislation, prove the point? Has that city provided evidence for a necessary connection between the removal of the ‘obstacle’ of Heritage protection and economic success?

July 2012

Prepared 5th July 2012