Enterprise and Regulatory Reform Bill

Memorandum submitted by Country Land & Business Association

(ERR 36)



1. This evidence covers the heritage aspects of this Bill (essentially Schedule 16). The CLA is a key stakeholder in this area. However, we think that the Bill should be more ambitious in its selection of aspects of the deregulation policy agenda.

2. The CLA welcomes the heritage content of the Bill in Schedule 16, as far as it goes. These initial proposals are useful though modest amendments to existing heritage legislation which will be of benefit in a minority of cases, and they should definitely be taken forward into law.

3. However, nobody should be under the illusion either that these will implement more than minor parts of the Penfold Review’s heritage recommendations, or that they will make any real contribution to solving the most fundamental problem in the fast-deteriorating heritage protection system, which is that local authorities do not have the staff and skills required to operate it.

4. It is therefore of paramount importance that the heritage elements of this Bill are supplemented as quickly as possible by further legislation. While some of the further measures required have already been consulted on, the most important areas require consultation and will therefore need to be incorporated into subsequent legislation, probably within a deregulation or planning bill, as soon as that consultation process (already underway) has been completed.


5. The CLA’s 34,000 members manage and/or own at least a quarter of all heritage. We are by far the biggest stakeholder group of those who look after heritage.

6. Nonetheless, we think that the Bill should be more ambitious in its selection of aspects of the deregulation policy agenda. These include changes to the planning system and the natural environment.

7. The CLA believes strongly in effective and proportionate heritage protection. This must include legislative controls, but legislation and policy which merely sought to "preserve" heritage from change would be self-defeating, and indeed actively dangerous because its maintenance and management costs are so high. If protection is to have more than partial and short-term effectiveness, legislation and policy must seek primarily to encourage heritage to be maintained and to be changed in sympathetic ways, so that it remains used and valued and relevant to the future of which we want it to be a part, maximising its chances of being maintained in the long term.

8. This approach is of course not particular to the CLA; it is accepted best practice, it is English Heritage policy as set out in its Corporate Plan and its ‘Constructive Conservation’ approach, and it is Government policy as set out in the NPPF and elsewhere.


9. We welcome the heritage content of the Bill, and believe it should be taken forward into law.


10. The fundamental problem with the current heritage protection system is that it assumes that any change to heritage (large or small, good or bad) requires detailed expert scrutiny. That might be fine in a world of unlimited resources, but in practice – unsurprisingly – the local authorities which operate it have never resourced it properly, resourcing has been cut by a third since 2006 [1] , and is now falling rapidly. Many local authorities now have no skilled advice at all, and the system is facing progressive collapse. Local authority staff are usually unskilled, and unable to cope with the workload the legislation imposes.

11. There is a strong perception among users that the sympathetic change heritage needs is difficult if not impossible to achieve. This discourages an unknown but large number of beneficial proposals which would have made listed buildings more useful and appreciated, or rescued heritage at risk. This perception also deters people from owning heritage at all, which is very damaging to its long-term health. Moreover, the perception that securing consent is difficult or impossible also leads to widespread evasion, and enforcement is rare, and poorly-targeted [2] .

12. While (as above) we support the heritage parts of this Bill and believe they should be taken forward into law, they will have only a very limited impact on these fundamental problems. For example:

(a) We welcome the ability to improve list descriptions (Schedule 16 clause 7), which is obvious good practice, but there are already almost 400,000 list descriptions, and it will clearly be years before even one per cent of all list descriptions reflect the new approach.

(b) Similarly, while the abolition of the separate Conservation Area Consent (clause 5) is a useful simplification, a planning application will of course be required which will usually involve as much work as the two usually-identical applications now used, so the actual resource savings for the applicant and local authority will inevitably be limited.

(c) While putting Heritage Partnership Agreements onto a statutory basis (clause 9) will undoubtedly be helpful for some users, they are not suited to one-off changes, which make up the majority of applications, and they are very expensive to create. They may be useful for some mainly commercial users who carry out frequent low-impact changes, but these are only a small proportion of all users.

13. If or when the measures in the current Bill pass into law, therefore, only a very small part of the job – perhaps 3 per cent of it – will have been done. Further legislation is essential.


14. BIS’s Penfold Review of non-planning consents from the start identified heritage (with highways and environmental consents) as one of the three consent areas which cause the greatest problems and are most in need of reform.

15. The Penfold Review’s heritage recommendations can be split into two groups. Firstly, there are some which were carried forward from the abandoned 2008 Heritage Protection Bill, which were consulted on in and before 2008. These are the measures in the current Bill.

16. Secondly, however, the remaining (and much more important) Penfold Review recommendations do directly address the local authority resourcing problem. They do this by creating a streamlined system for the very large number of no-harm proposals, and focusing resources instead on the potentially-harmful cases, by encouraging local authorities to meet acceptable service levels, and by encouraging enforcement to discourage evasion.

17. These are of course tools already widely used in other systems of regulation, and recommended not only by Penfold but also by Hampton, Macrory, Barker, Killian-Pretty, and others.

18. A consultation by the Department for Culture, Media and Sport on the implementation of these further Penfold proposals is already under way, with a public consultation on (we hope) effective proposals beginning this summer.

19. This next stage is much more important than the current stage. It is vital to the future of our heritage that effective proposals are put together, put through a consultation process, and then incorporated into further legislation as quickly as possible.

July 2012

[1] See the reports on Local Authority Conservation Resourcing published roughly annually by English Heritage, the Institute of Historic Building Conservation and Association of Local Government Archaeological Officers .

[2] For a more detailed discussion of these problems see the CLA publication Averting crisis in heritage , and the CLA consultation response Implementation of the Penfold Review heritage proposals , both available on the CLA website www.cla.org.uk.

Prepared 13th July 2012