The Ancient Monuments Amendment and Consolidation Act 1913 is commonly accepted as the first true heritage legislation and its 100 year anniversary has been marked by new heritage planning provisions within the Enterprise and Regulatory Reform Act 2013. The new provisions relate to both heritage designation (listing) and heritage protection (listed building consent) and should assist in bringing greater clarity and certainty for those managing and promoting change to listed buildings.
The new provisions have emerged from a combination of ideas from the previously shelved Heritage Bill, the Penfold Review and more recent initiatives proposed by both the Department for Business, Innovation & Skills in its consultation on wider regulatory reform and the Department of Culture Media and Sport in its more specific consultation on listed building control. Widespread consultation across the sector has helped refine the provisions, the actual introduction of which will vary in timescale depending upon the need for secondary legislation and any further consultation.
The legislation introduces a number of notable new heritage provisions.
New heritage partnership agreements
The long trailed idea of agreements for individual listed buildings or complexes of listed buildings, entered into between local planning authorities and owners to set out works for which listed building consent is in effect pre-granted, will now have legal force. The new provisions allow for the granting of listed building consent for specific works, specifying conditions and specifying those works that will not require listed building consent. The introduction of the new partnership agreements is likely to follow pilot schemes presently being considered by English Heritage.
New list entry descriptions
The nature and extent of the specific interest, which makes a building listable can now be better defined in new list descriptions allowed for by the new legislation. In effect, the new descriptions will have legal force in excluding attached buildings and structures and those within the curtilage of the principal listed building, from the listing and therefore from listed building control. It will be possible to state definitively and with legal force that some features or elements of a listed building are not of special architectural or historic interest. The intention of these new listings is that those who list can provide greater clarity about what is important and what is not for those who otherwise implement listed building controls. In effect, a greater degree of certainty can be provided at the point of designation to bring clarity to the point of control.
Certificates of immunity from listing – revised process
The new provisions allow for a certificate of immunity from listing to be applied for at any time and not to be related to a planning application. Such certificates allow the Secretary of State to confirm that specific buildings will not be added to the statutory list for a period of five years.
New national and local listed building consent orders
A new system of both local and national class consents are now possible under which works of alteration and/or extension described in the relevant class consent order will not then need listed building consent. The orders could relate to specific building types. The Secretary of State may seek to approve local orders and there are provisions for compensation where an order is subsequently revoked and consent granted subject to conditions, or refused. Local planning authorities must however report at least annually on the extent to which any local order is achieving its purposes.
New certificates of lawful proposed works
A new certificate of lawful proposed works is introduced (valid for 10 years) that categorically confirms that the works described in it do not affect the character of the listed building and do not therefore require listed building consent. As previously, works will be lawful if they do not affect the character of the listed building as one of special architectural or historic interest. However, the new certificate process allows for legally-binding confirmation from the local planning authority that this is the case in any particular instance, in turn bringing certainty for those wishing to carry out the works. Given the legal penalties for unauthorised works to a listed building such a provision has been long overdue.
Notably, if such an application for a certificate is not determined within a prescribed timescale or is refused by the local planning authority, there is a right of appeal to the Secretary of State. This process is likely to lead to a body of appeal decisions regarding what may or may not require listed building consent, which in turn should bring greater consistency in approach and practice.
Conservation area consent is replaced with planning permission
Separate conservation area consent is required for the demolition or substantial demolition of a building in a conservation area, in addition to any necessary planning application for proposed development. However, the new provisions allow for this separate consent requirement to be merged with planning control. In effect, planning permission will be required for demolition of a building in a conservation area. The existing legal penalties for unauthorised demolition are to be carried over through the Act and it will be a criminal offence to demolish a building in a conservation area without planning permission. There is also no time limit for when enforcement action may be taken.
About the author
Roger Mascall is Director for Heritage at planning and urban design consultancy Turley Associates
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