Neighbourhood Planning Bill

Written evidence submitted by H istoric England (NPB 09)


· Historic England believes that the historic environment is an asset in the delivery of growth, and we wish to see it properly considered in decision-making: neither harmed, nor avoided as ‘too difficult’. It is a strong contributor to sustainable development, and is of particular importance in neighbourhood plans, in their role as direct articulations of communities ’ aspirations for their areas.

· We support the general thrust of the Bill in seeking an efficient planning system, but are not convinced that the proposals necessarily achieve this as desired in all cases .

· We have a particular concern that Clause 7 will result in reduced protection for the historic environment , and other concerns about the potential for the Bill to increase the burden on local planning authorities (LPAs) .

· We would welcome the opportunity to engage with Government in the drafting and implementation of the proposed changes, t o offer our expertise and support, and to help avoid any unintended consequences , not least in relation to the cumulative impact of all the reforms currently being brought forward .


1. Historic England is the Government’s statutory adviser on all matters relating to the historic environment in England. We are a non-departmental public body established under the National Heritage Act 1983 and sponsored by the Department for Culture, Media and Sport (DCMS). We champion and protect England’s historic places, providing expert advice to local planning authorities, developers, owners and communities to help ensure our historic environment is properly understood, enjoyed and cared for.

2. Following our appearance at the Committee’s oral evidence session on Tuesday 18 October, we welcome the opportunity to submit written evidence on the following clauses, and particularly on Clause 7, which we believe may have most impact on the conservation of the historic environment.

Clause s 1-6: Neighbourhood Planning

3. Historic England supports neighbourhood planning, in principle and in practice . We produce advice in suppo r t of neighbourhood planning, and we are a statutory consultee in the neighbourhood planning process (on neighbourhood plans where our interests are likely to be affected; on Strategic Environmental Assessments, where required; on Neighbourhood Development Orders; and on Community Right to Build Orders).

4. Our overarching interest in these clauses is in supporting timely and constructive engagement in the planning process, naturally with a particular focus on conserving – and making best use of – the historic environment , and in ensuring that any changes to process are themselves clear, to make neighbourhood planning as accessible as possible to communities, and to minimise the additional burden on LPAs.

5. The proposal in Clause 1 to effectively give post- examination neighbourhood plans the same ( development plan) weight as ‘made’ neighbourhood plans introduces a lack of consistency within the planning system, as local plans cannot be regarded as having full weight until adopted. The recent Derbyshire decision also highlights that treating a post-examination plan in the same way as a made ’ plan may be premature , and risks giving a technically satisfactory plan more weight than the community would wish to see. Without a time limit being imposed, the ‘draft’ neighbourhood plan could also still be formally material when increasingly out of date.

6. With regard to Clause 3 , further clarity is needed as to whether – and when – statutory consultees such as Historic England would be involved in the process of assessing proposed changes to neighbourhood development orders or plans. The additional burden on LPAs is noted.

7. Clauses 5 and 6 intr o duce further pot ential burdens on LPAs, irrespective of the level of neighbourhood planning activity in the area.

Clause 7 : Restrictions on power to impose planning conditions

8. Historic England recognise s the need for effective and proportionate use of planning conditions, and the discouragement of excessive or inappropri ate conditions. We have some concern , though, that this clause will result in harm to the historic environment . We would appreciate assurance s that the proposed approach to pre-commencement conditions will not reduce heritage protection, and specifically that conditions relating to necessary up-front archaeology will not be affected.

9. Pre-commencement conditions for archaeology are necessary because they secure investigation of remains which would other wise be lost without record. They were introduced over twenty-five years ago to remedy the inadequacies of previous ‘watching brief’ observation conditions. They have worked well and do not cause significant delays to development. Their value has already been recognised by Government (e.g. in the technical consultation that accompanied the Bill), and so making them subject to developer approval risks introducing delay, uncertainty, increased risk of harm and unnecessary planning appeals.

10. The fact that the clause does still allow archaeological (and other) pre-commencement conditions at all is of course welcomed, but the developer approval caveat is a source of considerable concern . Whilst local planning authorities (LPAs) can refuse applications if applicants resist an appropriate condition, we are concerned that, in practice, LPAs will feel unable to resist such objections from the applicant, whether through lack of access to conservation expertise (the number of LPA archaeological specialists has fallen by 33.2% since 2006, and the number of conservation specialists by 35.8% ), a desire not to be seen to be opposing development on ‘merely’ archaeological grounds , c oncern about the costs associated with fighting (and potentially losing) an appeal , or the pressure to meet targets for the determination of applications . In consequence, LPAs may give permission with inadequate or unclear conditions in order to avoid refusing consent . The identification of harm/enhancement to heritage assets is the crucial part of assessing any proposal for change affecting heritage assets, so anything that serves to reduce the ability to assess proposals , and permit them appropriately, runs the risk of a reduction in heritage protection, and harm to the historic environment (and thus to the delivery of sustainable development).

11. As conditions are already required by policy to be reasonable, the additional regulation of a measure in pr i mary leg i sl a tion could in fact be avoided alto gether , and the clause deleted. Much of the evidence cited to suggest that these conditions are overused is anecdotal, and our own experience suggests that a rchaeological conditions are necessary and generally well-justified; archaeological pre-commence m ent conditions are rarely challenged by developers, as would be the case if they were obviously unreasonable or onerous. Nor is it clear that the discharge of archaeological conditions itself causes more than occasional and minor delays to commencement, and when it does this is often because the developer has delayed appointing archaeologists; arguably, formalising a requirement to consult the applicant and seek agreement to a pre-commencement condition is also going to cause a delay in the planning process. The consultation accompanying the Bill suggests a mechanism to address a complete failure to respond to LPA overtures by the applicant, but does not itself guard against protracted negotiations.

12. The Government has suggested that the proposals ‘will not restrict the ability of LPAs to seek to impose conditions that are necessary to achieve sustainable development, in line with the NPPF’. We have yet to see the outcome of the recent review of the NPPF, and are therefore a little concerned at the reliance of Clause 7 for its successful implementation on the existing – and thoroughly supported – policy approach, when that might itself be undermined (we have previously expressed our concern that the December 2015 NPPF proposals will unbalance the NPPF and give less weight to the current provisions for heritage protection).

Clause 8: Register of planning applications etc.

13. The proposal to include within the planning register a record of prior approval applications for residential conversions supports transparency, but is also a modest additional burden on LPAs, and does not appear to be necessary as the information is already available.

14. Wider concerns relating to permitted development include the proliferation of permitted development , and the associated reduction in local control over the amount, location, quality and mix of development , particularly in relation to office-to-residential permitted development rights.

Part 2: Compulsory Purchase (Clauses 9-30)

15. Historic England does – very occasionally – use Compulsory Purchase Order (CPO) powers (most often in partnership with local authorities, in relation to a town and country planning or housing power and scheme, or a repairs notice on a listed building), but so little as to mean that we have no real comment to make on these proposals.

16. In all cases a fairer and more certain system will mean that these powers can be used with more confidence and to better effect and so, in general terms at least, we support the changes proposed.

25 October 2016


Prepared 26th October 2016