Listed Buildings and the Historic Environment a Critique of the Government2019s Review of Heritage...

8/12/2019 Listed Buildings and the Historic Environment a Critique of the Government2019s Review of Heritage Policy

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PPG15 is now out of date in view of the recent changes that have taken place, and needs to becorrected. It is intended that, following the consultation period, the new principles of selection willbe issued in a circular.

Responsibility for listing

One of the most important reforms proposed as part of the new system is that English Heritageshould take over responsibility for designation of listed buildings from the Secretary of State forCulture, Media and Sport. This will require primary legislation in anticipation of this changeEnglish Heritage has taken over the administration of the current listed buildings system from

April 2005. The statutory responsibility for listing will be subject to a number of importantsafeguards. These include a statutory right of appeal to the Secretary of State, and ability for theSecretary of State to call-in decisions. English Heritage will have to work within a policyframework set by the Secretary of State and provide an annual report.

The transfer of the decision on listing to English Heritage rather than the Secretary of State isclearly a sensible move. It draws a clear distinction between the role of the case-by-casedecision-maker (English Heritage) and the policy maker (the Secretary of State). One of the

suggestions made in the consultation paper was the idea of having an independent committee tovet applications. This did not find favour among the consultees and the Government hasrejected it as adding another tier of bureaucracy that would be both expensive and time-consuming. Again, it is difficult to argue with the logic of this. However, the credibility of thesystem will depend on the quality of decision-making. There does not need to be a formalcommittee but access to the right advice will often be crucial. These decisions will needto be able to withstand scrutiny and the system will have to be operated in an open and efficientway that commands public confidence.

Grading and local list ing

Currently listed buildings may be graded as I, II* or II. The Government view is that this is

outmoded and confusing, particularly the II* grade. They propose to replace the current systemof grading with a system that would simply divide buildings into Grade 1 or Grade 2. It isanticipated that most, if not all, of the buildings currently listed as Grade II* would be listed asGrade 1 under the new system. This may be a missed opportunity. The automatic promotion ofthe Grade II* buildings could be seen as a dilution of the quality of the highest grade. Whenlooking at the highest grade of listed building, there is an expectation that this represents thevery best that the national heritage has to offer. Simply doubling the numbers of suchmonuments overnight is not the best way of encouraging the view that these are pinnacles ofarchitectural or artistic achievement.

There is in fact a case for enlarging rather than reducing the numbers of categories. Apart fromthe fact that the new Grade 1 will contain a larger number of lower quality structures than the old

Grade I, there is a massive variation in quality within Grade II. The vast bulk of Englands half amillion listed buildings fall into this category and they include some important buildings whoseretention would be regarded as a high priority by all but the most hardened philistine. On theother hand there are also many Grade II listed buildings where the justification for listing would,to put it kindly, not be obvious to those who lacked an expert appreciation of their merits. It mightbe thought that this would lead to the idea of increasing the number of grades being at leastconsidered.


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There was also a suggestion in the consultation paper that a number of Grade II listed buildingscould be migrated to local lists. This proposal proved extremely unpopular with consultees andthe Government is not intending to pursue it. This potentially looks like another missedopportunity. The problem with the suggestion was that it was not accompanied by any proposalto require local lists (at present only 44% of local authorities keep local lists) to be kept or to givethe buildings listed on them any form of statutory protection. In the context in which it was

proposed, it was really a proposal simply to de-list these buildings. There are in fact strongarguments in favour of local listing and for such local lists to include some buildings that wouldotherwise be listed as Grade II. As a matter of logic a building on a national list ought, at somelevel, to be regarded as being of national importance. Many Grade II listed buildings make avaluable contribution to their local environment but are of little relevance to the nations heritage.Itwould therefore be sensible for their merits to be assessed and their preservation to beconsidered in a local context.

However, for this to happen there needs to be some kind of statutory protection of locally listedbuildings even if this amounts to no more than their demolition being excluded from the GeneralPermitted Development Order. There would also need to be a requirement on local authorities tokeep such lists and assume responsibility for monitoring the protection of such buildings. It is to

be hoped that this suggestion, which is still under consideration, will be taken forward. Oncethese lists command a degree of confidence then it may be a good idea to look afresh at thenotion that some of the existing Grade II buildings could more effectively be protected at a locallevel.

The process of lis ting

There are also a number of proposals, largely welcome, for changes to the process of listing.The expressions transparency and certainty recur like a mantra throughout the consultationdocuments. It is correct that, once a building is listed, an owner may be in considerable doubt asto what he is and is not allowed to do. This is not, as is said in the consultation document goodregulatory practice.

Under the Planning (Listed Buildings and Conservation Areas) Act 1990 s1(5) the listed buildingincludes:

(a) any object or structure fixed to the building;

(b) any object or structure within the curtilage of the building which, although not fixed to thebuilding, forms part of the land and has done so since before 1st July 1948

Under s7 authorisation is required for any works for the alteration or extension of an existingbuilding in any manner which would affect its character as a building of special architectural orhistoric interest.

The 2003 consultation paper was critical of these provisions, stating:

It is often unclear whether objects or structures are included in the listing, curtilage can bedifficult to pin down and the local authority cannot settle the matter by issuing a certificate. (p13)This statement does not acknowledge that there has been a reasonable amount of case law onthese provisions that has clarified their scope and effect. Nonetheless, the proposal to whichthese criticisms give rise is a sensible one: to provide better information to owners. In theconsultation paper the suggestion was to have, for each item on the list:


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a map showing exactly what area and structures are covered by the listing a statement of significance setting out the reasons for listing, the significance of the asset andlisting the works for which consent would be required

This suggestion was refined when the response was published. In the 2004 paper the

Government indicate that they have decided that there should be a map for each designationand that this should be accompanied by a summary of importance setting out the reasons forlisting. In addition English Heritage are to develop an information pack for owners explaining theimportance of the asset, further information and details of who they need to approach for moreinformation. Wisely, there is no mention of information about what objects are protected or whatworks need consent. This would be very difficult to assess in detail at the time of designationand would probably require an internal survey of each property, imposing an almost impossibleburden while still not avoiding the danger of misunderstandings. If it was considered that thelegislation was not clear enough then they obvious remedy would be to amend it, though it isdifficult to see how this could be done in a way that left no room for doubt. An alternative wouldbe to enable a local planning authority to provide a certificate, a suggestion that was alluded toin the passage quoted above. A better solution is to provide high quality information to owners

and ensure that they have access to appropriate advice from their local authority.

There is one aspect of s1(5) which does warrant consideration and that is the requirement that,in order to merit protection, an object needs to have been in the building since before 1st July1948. A twenty-two year period was considered reasonable in 1970. There is a possibility thatwhat is now a fifty-seven year period is going to allow objects and structures, which form part ofsome important post-war buildings to slip through the net.

Perhaps the most important changes to the process of listing which the Government hasdecided to implement are the requirements to notify the owner and local authority prior to thedecision to list and the introduction of a right of appeal. This represents a transition from a semi-secret the experts know best approach to a transparent and accountable system. The notion,

inherent in the existing system, that owners were not to be trusted, has been replaced by anassumption that they should have an important voice in the decision and that their views need tobe taken into account. Similarly, the local authority will have important views which ought to beheard. There will be a period of interim protection from the time of notification. This will lapse ifthe decision is not to list the building. These proposals will require primary legislation toimplement them. In the meantime English Heritage are consulting with owners and localplanning authorities about all new listing decisions on a non-statutory basis.

The introduction of a right of appeal is a much-needed reform. A decision as to whether to list abuilding can have important implications for its owner. Potentially its consequences could bemore far-reaching than the service of an enforcement notice. As the appeal is to the Secretary ofState it will presumably work in the same way as other planning appeals and could be dealt with

by way of written representations, an informal hearing or a public inquiry, depending on thenature of the subject matter.

Regeneration and spot-listing

In both the consultation paper and its response the Government said it was keen to address theproblems which could be caused by spot-listing an asset shortly before a redevelopment is


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about to begin on a site. They comment that although it may not be widespread the cases inwhich it occurs tend to be high profile and can create disproportionate dissatisfaction with thesystem. This is true, but those who have had to shelve major and much needed plans forredevelopment at a late stage because of the sudden listing of a structure which has been seenmore as a local eyesore than a part of the nations heritage might not regard their dissatisfactionas disproportionate.

The essential problem is that this type of listing is symptomatic of two things: first, a reactiverather than a proactive approach to building conservation and second, an ability to see the widerpicture. The Government response to this was inadequate. It stated that it would ensure thatthere is an overarching statutory definition of historic assets. (A good idea but not one thataddresses the problem under consideration.) It also put in hand a review of the criteria for listingbuildings. This is now subject to consultation and is discussed further below. However, this doesnot deal with the issue either.

The Government also say that the ODPM are developing models to deal with the difficulty ofspot listing requiring additional consent and causing delay. It is not clear what these might be butthe way in which it is expressed indicates that the nature of the problem has not been fully

appreciated. Unexpected listing decisions can prevent redevelopment and regeneration takingplace, not simply cause delay. What is needed is an approach that recognises that the potentialvalue of a building that might be regarded as having aesthetic or historic merit is only one factorthat needs to be taken into account. The purist approach approved by the Government does notaccord with the reality of the type of decisions that developers and local authorities have tomake. The merits of preserving a particular building or structure need to be weighed against thebenefits of the redevelopment proposals under consideration.

A uni fied system and statu tory management agreements

There are two aspects to the establishment of a unified system. One is unifying the existinglisting arrangements into a single list. The other is establishing a unified consent regime.

It is intended that there will no longer be separate lists of listed buildings, parks, gardens,battlefields and scheduled monuments (as well as the much shorter list of World Heritage sites).

A single Register of Historic Sites and Buildings of England will replace these separate lists.There will also be a local section including conservation areas and locally listed buildings. Thelist will be compiled and administered by English Heritage. It is a good idea in principle to unifythe different protection regimes. However, there is a sense in which it is only a small step. By farthe largest category on the new list will be listed buildings.

The Government also intends to establish an integrated consent regime. This will unify listedbuilding consent and scheduled monument consent. This will be administered by localauthorities. The Government is looking into the possibility of unifying all the existing consentregimes, including consent for planning permission and conservation area consent. In principle

this is a good idea.

There is no reason in principle why a single proposal in respect of an individual site shouldrequire three separate consents, as is often the case in certain areas.

The Government sees the establishment of a unified consent regime as going hand in hand withthe greater use of management agreements. These would take the form of agreements aboutwhat works could or needed to be carried out and arrangements for the future management of a


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site. The existence of such an agreement would obviate the need for individual specificconsents.

A research report commissioned by ODPM and English Heritage into the use of managementagreements for listed buildings was published in June 2003. It found that managementagreements could provide a helpful framework for streamlining listed building consent. Although

this would require amendments to the existing legislation, the Government has agreed that,once the unified register and consent regime has been established, management agreementscould be used wherever they would work better than the system of specific consents. It indicatesthat this approach is likely to work best for:

large scale buildings, sites and landscapes;

complex historic entities that comprise more than one type of asset;

assets that are better managed alongside other regimes (e.g. in the natural environment or inthe local planning framework);

assets of a similar type in single ownership but dispersed locations (e.g. historic bridges).

There is no reason in principle why such a system should not work well. There may be scope forusing it more imaginatively than the above list implies. It is not only large-scale and complextypes of site that could benefit from this type of arrangement. Why, for instance, should not anindividual occupier of a house or commercial premises seek to agree a simple form ofmanagement agreement which will give certainty over his future plans for the property withoutneeding to worry about the potential complications which could arise from the need to apply forindividual consents?

Revisions to listing criteria

On 25 July 2005 the Department of Culture, Media and Sport and the Office of the Deputy PrimeMinister published a consultation document Revisions to Principles of Selection for ListingBuildings: Planning Policy Guidance Note 15. A full-scale revision on PPG 15 and its integrationwith PPG 16 will take place after new legislation is in place. However, the Governmentconsidered that there was an immediate need to put in place clearer and more focused criteriafor listing a building. These are known as the Principles of Selection. The proposed revisedcriteria are set out in a draft circular that forms Chapter 5 of the consultation document.

The Government says that it believes that the fundamental principles set out in the currentPrinciples of Selection are sound and is not proposing to change them radically. However, theyare very broad-brush, particularly when compared with the detailed criteria applied tomonuments, parks, gardens and battlefields. They do not take account of the work that has been

undertaken by English Heritage to identify the special characteristics of individual building types.Thus the new Principles include a great deal of detail about the particular types of featuresassociated with different building types which would make individual buildings stand out as beingof special interest. This is both sensible and useful, though the level of detail included turns thispart of PPG 15 into a set of detailed guidelines rather than a policy document.

It is nonetheless disappointing that the Government and English Heritage have not taken thisopportunity of having a radical rethink of the Principles of Selection. There is no attempt to seethe process of listing as taking place in a wider context, such as the character of the surrounding


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area. There is no indication that listing should be accompanied by any kind of thought aboutwhat could or should be done to ensure that the building is in fact preserved. Indeed, it is seenas a benefit that the decision as to whether a building should be listed takes place in isolation.There is still a heavy emphasis on the age and historical associations of buildings. This isindicative of a mindset that seems to find it impossible to think of listed buildings as anythingother than a kind of national museum. While there may be merit in this approach, there does not

appear to be any debate about whether an alternative approach would actually do more for thepreservation of the national heritage. The general principles setting out benchmark dates to theeffect that the older the building the more likely it is to be retained almost in its entirety. The rulethat buildings less than 30 years old are normally listed if they are of outstanding quality andunder threat has not been changed. The use of the words under threat is a furtherencouragement to a reactive approach to listing. On the positive side, there is no longer anabsolute bar on more modern buildings being listed. The new rule is that buildings that are lessthan ten years old are not listed except under the most exceptional circumstances.

Incentives to owners

There is reference in the 2003 consultation paper to the main incentive for owners to look after

their property and respect its special character being the impact on its value. This appears to bea somewhat simplistic approach. Maintaining the special character of a listed building may ormay not be the best way of obtaining best value from the land that it occupies. The paper alsorefers to the availability of grants for repair and improvement from various public and charitablebodies and the reduction in VAT on alterations to the property. No particular comments weresought and the subject has not been mentioned as forming any part of the Governments plansfor future action.

However, it is, in a sense, the most important subject of all. Unless there is a means of ensuringthat buildings which are deemed to be of national importance are maintained and kept in goodrepair then it raises the question of whether the list should be much more selective than it is atpresent. The present enforcement regime is clearly ineffective. The ultimate power of

compulsory purchase is rarely used. Yet the issue of enforcement has not formed any part of thedebate about the protection of the historic environment. There was an interesting proposal madein Power of Place that a duty of care should be placed on the owners of listed buildings so thatthere was a positive obligation to keep them in repair. It may be that this suggestion isimpracticable but it surely merited at least consideration by the Government as a topic worthy ofconsultation.

Conclusion

The governments review of the current regime for the protection of the built historic environmenthas resulted in a number of positive immediate steps and long-term plans which should result ina more transparent and open regime as well as being more effective. Most of the proposals are

sensible administrative measures, such as the creation of a unified list and unified consentregime as well as the transfer of responsibility for listing to English Heritage. Others, such as therequirement for consultation, and the establishment of a right of appeal are simply establishingconformity with elementary principles of justice.

On the whole though one may question whether the approach being taken is sufficiently radical.Historic buildings, and for that matter modern buildings of exceptional aesthetic merit, do notexist in splendid isolation. They are a part of a living, changing environment. The proposals forreform of the current system need to acknowledge this to a greater extent than they have done


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so far. There may, for instance, be circumstances in which a decision about whether to list abuilding needs to weigh the wider plans for the area against the merits of preserving theindividual structure. More thought is needed as to how buildings will be protected. There is alsoa need to acknowledge that any regime that imposes obligations needs to be backed up byeffective means of enforcement. This is an aspect of the regime which does not yet appear tohave been considered. It is to be hoped that when the long-awaited White Paper on the historic

environment is produced it will demonstrate that the Government is prepared to adopt a boldapproach encompassing changes which will provide effective protection for the nations heritage.

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