Our aim is to improve the quality of life for all through cultural and sporting activities, support the pursuit of excellence, and champion the tourism, creative and leisure industries.
Annex A: List of respondents to the consultation 16
The Penfold Review of Non-Planning Consents, published in July 2010, outlined a number of options for changing the system of listed building consent. Government published its initial response to the Penfold Review in November 2010. Following a progress update on implementation of the Penfold Review recommendations, a final implementation report on the Penfold Review was published in November 2011, setting out a programme to:
scrap unnecessary development consents and simplify others;
reform the remits and working practices of the public bodies granting or advising on development consents;
set a clear timescale for deciding development consent applications;
make it easier to apply for development consents.
The Enterprise and Regulatory Reform Bill currently being considered by Parliament already includes some of those Penfold Review recommendations, including four measures relating to heritage, which had been the subject of extensive previous consultation in the context of the draft Heritage Protection Bill 2008.
However, not all of the Penfold heritage recommendations were consulted on initially, and so Government has been considering further what else can be done to implement the Penfold Review recommendations in relation to heritage measures, and to improve the system of listed building consent. Additional suggestions for improvement arose from pre-consultation discussions with heritage stakeholders in spring 2012.
Government consulted on these possible additional measures over the summer1. The consultation closed on 23 August and a total of 432 responses were received. A list of respondents is at Annex A. The responses will be made available to view on the DCMS website.
In August, English Heritage also hosted three stakeholder events at which views were invited from the industry on the proposals. This was done to ensure that as wide a range of viewpoints as possible could be taken into account. The events were well attended and prompted a number of discussions. English Heritage have now produced summaries of the discussions2.
Following consideration of the consultation responses and the stakeholder events, Government has now determined the next steps for the options outlined in the consultation.
In terms of the options within the consultation, we have decided the following:
Option 1, introducing a system of deemed consent. We do not plan to take this proposal forward at this time.
Option 2, introducing a system of local and national class consents. We will take this option forward and introduce the necessary legislation required to achieve this.
Option 3, introducing a Certificate of Lawful Works. We will take this option forward in relation to proposed works, and introduce the necessary legislation required to achieve this.
Option 4, introducing a system of accredited agents. We will take this option forward, but seek a non-statutory route, working with industry to realise the most appropriate way to introduce a light-touch system.
On the issue of reform of enforcement powers for buildings at risk, building on responses received from the consultation, we will consider further what measures – both statutory and non-statutory - are most appropriate to deal with buildings at risk
The above conclusions are explained in more detail in the following chapter. Where possible we will seek to introduce the legislative changes required in the Enterprise and Regulatory Reform Bill which is currently being considered by Parliament. If it is not possible to introduce certain measures within that Bill, we will actively explore alternative legislative possibilities.
The non-legislative provisions (i.e. accredited agents and measures aimed at removing listed buildings from risk) will be explored in further detail during the autumn.
Government is extremely grateful for the positive and constructive way in which many stakeholders have responded to the consultation.
System of prior notification leading to deemed consent
The consultation set out a system of prior notification of proposals for specified types of work to local planning authorities, who would be able to respond to the notification with a request for a full listed building consent (LBC) application within a specified time period, or to allow that period to lapse, with LBC thereby deemed to be granted.
Currently, listed building consent is required for any works for the demolition, alteration or extension of a listed building which affects its character as a building of special architectural or historic interest. This brings a wide range of works into the control system, not all of which have a harmful or significant impact on special interest. Submission to the local planning authority (LPA) of a simple prior notification of the intention to carry out works to a listed building would then allow the LPA either to allow the works to go ahead without further intervention, if they judged them acceptable, or to require the submission of a full LBC application. Enabling LPAs to focus on applications more likely to impact on a building’s special interest, while allowing a lighter touch for applications with less impact, would allow better use of their resources, and would also lighten the burden on owners and developers.
In the consultation, 157 respondents said they were in favour of this option as opposed to 199 who were not. The reasons for these views, highlighted in consultation responses, included the risks of introducing extra complication by creating a new and more complicated validation process for notifications, and potentially, if too many notifications are “called in” for full LBC, actually extending the LBC process; this would not lead to savings of time or resource. On the other hand, the 28 day deadline for responses was seen as too short to enable the local planning authority to ensure a considered application of expertise to the prior notification. Cutting out opportunities for pre-application discussions and for consultation were both suggested to be a retrograde step. It has also been noted that it might be very difficult to define, either through legislation or guidance, works which could be considered to have little harm to special interest, or limited harm justified on conservation grounds, and which could be allowed to go ahead with limited scrutiny without the danger of harm to special interest in some instances.
2.1.4 Question 3 of the consultation sought to gain further information from local planning authorities on the numbers of listed building consent applications which were approved following amendment or with the addition of non-standard conditions. This was intended to explore further the likely numbers of LBC applications which would be able to benefit from a system of prior notification leading to deemed consent by virtue of being sufficiently minor in impact, and including appropriate levels of information. Of the responses received to this question, however, the overwhelming majority indicated that a large proportion of LBC applications were only determined by local planning authorities after some amendment or the application of non-standard conditions – i.e. they would not be appropriately dealt with by means of prior notification/deemed consent, which relies on applications receiving no additional input from the planning authority to be acceptable. As one consultee put it, the 95% proportion of LBC approvals cited in the consultation document has to be worked for. As another one put it, the non-standard nature of LBC decisions reflects the non-standard nature of listed buildings. Many of those who responded also mentioned the close correlation between pre-application input and the success of applications; paradoxically, prior notification leading to deemed consent, by bypassing the pre-application route, was considered likely to actually reduce the numbers of applications to which it is best suited.
Thus for these practical reasons, on further consideration, we concluded that this option would be unlikely to provide any tangible benefit in relation to either simplifying the process or clarifying the timescales. Indeed it was evident that this option may further complicate and prolong the process; if even a small majority of applications were called in for full LBC, prior notification would add delay and an additional layer of process. Based on the information submitted, it seems that the numbers of applications called in for full LBC is likely to be high. We also took into account the risk of harm to special interest through lack of scrutiny of changes, and of incremental, unregulated change over time.
Following further consideration of this option, we have decided not to pursue this idea further at the moment, although we will keep this position under review.
System of local and national class consents
The consultation set out a system allowing class consents for defined works to defined heritage assets to be issued unilaterally by a local authority. It was also proposed that the Secretary of State, advised by English Heritage, be enabled to grant a class consent for an area or group of assets that cross local authority boundaries for a defined class or classes of works. A system of local and national class consents was put forward as an alternative measure to a system of prior notification leading to deemed consent.
This option seeks to address the number of full LBC applications for works which have neither a harmful nor significant impact on special interest. A system of local class consents, set up by a LPA, could be used to set aside the need for an application for LBC for a defined class or classes of works affecting a defined area or group of heritage assets, where the extent of special interest is well understood. The Secretary of State could be empowered to grant a class consent for an area or group of assets that cross local authority boundaries, for instance canal networks or other infrastructure, for a defined class or classes of works. By responding to well understood local or specific characteristics this approach would allow a light touch for a range of works which have minor or acceptable impacts on the special interest of known categories of listed building. It would also reduce regulation and lift burdens by removing altogether any requirement to make, process or consider an application.
The majority of consultation responses regarding local class consents were positive, with 177 respondents supporting and 122 opposing. Reservations were expressed about whether there would be sufficient depth of knowledge or information about special interest to be able to define works which would certainly not be damaging. The variance of detail between individual listed buildings was also cited as a concern. Doubts were expressed as to the ability of local planning authorities to be able to devote the time and resource needed to set up such arrangements given the continuing loss of specialist heritage staff.
Positive responses acknowledged the potential of this approach for clarifying and saving time spent approving changes which did not have a detrimental impact on special interest. Parallels were also drawn with Heritage Partnership Agreements, of which this approach was seen as a development. They nonetheless stressed the need for good standards and sound process in setting up local class consent, including consultation with interested and locally knowledgeable parties such as local amenity societies.
2.2.5 The majority of consultation responses on national class consents were also positive, with 176 in favour and 120 against. There was some apprehension that national class consents would broadly define categories of work which could not comfortably apply to listed buildings across the board. There was also concern that this approach ran counter to the promotion of localism, and would tip the balance of considerations in favour of unsupervised development. It was pointed out that local authorities now have a duty to co-operate which might encourage the development of arrangements to deal with heritage assets which crossed administrative boundaries.
In the light of this more favourable range of opinion, and potential benefits in producing lighter touch controls, we consider that the class consents, as an optional measure for local authorities and the Secretary of State, and based on clearly and tightly defined areas or groups of assets and types of work, should be pursued. We are confident that it will be possible to achieve this, and to put into place the necessary safeguards to ensure that class consents are well drafted and drawn up accountably, including appropriate levels of consultation. We acknowledge that they will require an input of resources to set up, but do believe that consultants, voluntary groups or academic bodies could also contribute to the development of local class consents.
Similar systems already operate in related areas of the law. For example, planning permission can be granted automatically by way of a local development order for certain categories of development and there are a number of operations affecting scheduled monuments which have little or no material impact on the fabric of the monuments, and for which as a result scheduled monument consent is granted automatically by means of a class consent order. Local development orders are therefore similar to local class consents. National class consents are similar to permitted development rights granted nationally through the Town and Country Planning (General Permitted Development) Order 1995 (as amended).
We now want to proceed with these proposals and introduce a system of national and local class consents for listed buildings.
National class consents
We now plan to introduce a system of national class consents whereby the Secretary of State with responsibility could make an order to grant listed building consent for works in a class specified in the order. This is referred to as a ‘national class consent order’.
We envisage that national class consents could be used in describing operational or routine works carried out by specific organisations (e.g. works by the Canal and River Trust for the functioning of a canal). A national class consent could specify types of works that can be carried out to any, or a group or type of, listed buildings in that ownership, e.g. routine or regular works which have only a minor impact on the character of the building as a building of special interest.
The Secretary of State will have discretion to determine how best to create a national class consent and what that will include. But at all times the Secretary of State will have special regard to the desirability of preserving the relevant buildings (or their setting or any features of special architectural or historic interest which they possess) which would be affected by the grant of the order.
The Secretary of State will be required to consult English Heritage before making an order for a national class consent.
We recognise that there may be some circumstances where national class consents are appropriate for most of the country but not all. In those cases, we want to provide for the Secretary of State and local planning authorities to have the power to direct that any LBC granted by national class consent order does not apply to a particular area or a particular class of listed buildings within an area. This recognises that local authorities may want to restrict the use of a national class consent order if it is not suitable for the character of listed buildings in their area.
Local class consents
We would also like to introduce a system of local class consents whereby a local planning authority could make an order to grant listed building consent for works specified in the order. This could include the alteration or extension (but not demolition) of listed buildings in an area. A local class consent order could relate to specified works in a particular area or in relation to a particular class of listed buildings, and has the potential to increase the scope of applications for which an LBC application would not be required. Local understanding of the characteristics of special interest would allow greater flexibility in setting aside the need for LBC, thus potentially realising greater savings than under a national class consent.
A similar system (i.e. local development orders) already operates in planning for certain categories of development. The local authority would of course have the discretion to revoke a local class consent order at any time should it decide that it is no longer serving its purpose. The Secretary of State will also have the power to reject, approve or modify an order – as well as revoke it at a later date. There was concern among consultees that these orders be subject to rules of consultation mirroring those for LBC applications. We are therefore providing for the Secretary of State to make an order setting out the procedure including consultation requirements.
Certificate of Lawful Works for listed buildings
In the consultation on improving listed building consent, we included the option to allow local planning authorities to grant a Certificate of Lawful Works either for proposed works to a listed building which do not have an impact on special interest, or for existing works carried out in the understanding that no LBC was required, and confirming that this was the case.
Works to a listed building which do not affect its character as a building of special architectural or historic interest do not require consent. Interpretations of whether or not consent is needed can vary between local planning authorities. LPAs are often reluctant to give a view as to whether the work would require LBC because it is ultimately a matter for the courts to determine and LPAs do not wish to fetter their own discretion. Those seeking to make changes to listed buildings are sometimes required to submit a formal application for listed building consent in order to gain certainty as to whether or not the works in fact affect special interest. Owners and prospective developers have expressed their desire for a mechanism allowing them to receive a simple assurance about whether or not LBC will be required for given works. A legal mechanism allowing a local authority to grant a “Certificate of Lawful Works” would allow formal clarification of whether or not LBC is required, and would avoid the submission of a full LBC application.
While some considered that clarity on the need for listed building consent is already widely sought and gained through the pre-application process, consultees overall agreed with the idea of introducing a Certificate of Lawful Works for listed buildings to deal with prospective works (211 supporting, as against 85 opposing). The mechanism was seen as mirroring arrangements already in existence in the planning system, and a reasonable way of providing certainty to owners. Caveats expressed included the need to ensure that the process involved was shorter and easier than applying for LBC, and the need for a right of appeal.
There was, however, less comfort with retrospective Certificates of Lawful Works (77 supporting, as against 156 opposing), due to the complications in assessing the evidence for what had been there before works had been done, and the contradictions inherent in lack of a time limit for enforcement against breaches of listed building controls. Its usefulness in the conveyancing process was acknowledged by some. Many expressed a fear that this would encourage a culture of applicants carrying out unauthorised works in the hope of regularising them subsequently with a retrospective certificate.
We now intend to implement a system of certificates of lawful works for listed buildings which can be applied prospectively.
LBC is required for works for the alteration or extension of a listed building in any manner which would affect its character as a building of special architectural or historic interest. The works which require consent are therefore broadly defined and conceivably cover very minor alterations (e.g. replacement of a kitchen). The paperwork, time and effort involved in an LBC application process can be significant and some owners put in applications for minor or routine works – not necessarily because there is a concern that such works would affect the special interest in the building – but because a cautious owner seeks certainty.
It is in light of these disadvantages that we are seeking to create a simple mechanism that allows a person to receive written assurance from the local authority that LBC will not be required for proposed works (i.e. prospective assurance) to a listed building. This is the ‘Certificate of Lawful Works’. Under this mechanism, an individual who wishes to have certainty that any proposed works for the alteration or extension of a listed building are lawful, may make an application to the local planning authority specifying the listed building and the works to be carried out. The application will need to provide sufficient information to identify the listed building and accurately describe the extent of the proposed works and give reason. A new offence will be created of providing false or misleading information on such an application, and there will be a right of appeal.
The consultation on improving listed building consent set out a possible proposal for independent accredited agents to make expert recommendations to local planning authorities in the exercise of their statutory duty to determine applications. Government is keen to expand the range of expertise involved in decision-making on LBC cases so that decisions can be reached more quickly and effectively, while standards of protection are maintained. Research indicates that nearly three quarters of all applications for LBC in town and city centres are made by an agent on behalf of the owner/tenant of the property. Pre-consultation discussions with heritage bodies and consultancies confirmed that detailed heritage reports are often submitted to accompany major applications affecting heritage assets. Enabling owners or developers to commission an independent agent to offer an expert report and recommendation to the LPA as part of the LBC application, effectively “certifying” the works as acceptable, would be a logical next step. It would expand the sources of expert advice to local authorities, and encourage early consideration of heritage issues in the development of proposals. The LPA would continue to administer consultation and notifications, including to English Heritage and national amenity societies, as at present, and decisions would continue to be taken following current governance arrangements.
Consultation responses were overwhelmingly against this option (74 supported, as against 266 who opposed it) and raised a number of concerns relating to the likely objectivity of accredited agents, particularly as LBC decisions are often a matter of judgement rather than technical assessment, and LPA conservation officers should be seen to be neutral. They also expressed fears over the possible impacts of this approach on local authority conservation provision. However, the approach was seen to have some potential, particularly for bringing fresh expertise to bear on applications, provided safeguards were in place through the accreditation system. It was acknowledged that consultants already play a significant role in the LBC system through advising applicants and directly advising LPAs. Having further considered this option and taken into account the views of stakeholders, we have decided not to introduce legislation in relation to this at the moment. We will, however, instead seek alternative non-legislative routes.
Following further consideration of this option, we have decided not to pursue this idea through legislative reform at the moment.
We recognise the concerns relating to this option, but do consider it is important to look at ways to expand the resources and expertise available to local authorities in determining LBC applications. We will therefore explore a system which is non-statutory and complementary to the system which LPAs use to determine applications. As LPAs are already able to seek external expert advice, the intention of using accredited agents is to strengthen expertise and drive up standards. A robust system of accreditation would be established to ensure that appropriate standards of expert advice are applied to LBC cases, and provide monitoring and enforcement of professional behaviour. We will define and test this approach over the coming months.
Buildings at risk
As set out in the consultation on improving listed building consent, we are concerned about the number of listed buildings which have been on the Heritage at Risk Register for a long time. Local authorities have powers to serve Urgent Works Notices or to pursue Compulsory Purchase Orders after serving Repairs Notices but find them problematic to exercise. This is a disincentive for carrying out any enforcement work in cases of listed buildings that appear to be neglected. We wish to investigate reforms to measures available to deal with buildings at risk, which might include legislative reforms, but could cover a wide range of measures.
The consultation therefore sought views on the reasons why enforcement powers are not being used. The consultation asked respondents to consider whether amending the legal powers relating to Urgent Works Notices, Repairs Notices and compulsory purchase could be effective in encouraging authorities to pursue cases of neglect to listed buildings. It also asked for proposals for any further changes or amendments, including non-statutory changes, beyond those suggested, which would provide additional benefits or improvements to protect buildings at risk.
Consultation responses revealed support for reforming legal powers relating to Urgent Works and building Repairs Notices - of the responses on this, 169 were in favour with 25 against. The costs arising from serving an Urgent Works Notice, or arising from compulsory purchase were seen as an inhibiting factor in pursuing buildings at risk. The processes involved in seeking the repair of buildings at risk are seen as onerous, and as allowing owners opportunities to evade their responsibilities, all meaning that a building can deteriorate substantially in the time it takes to seek its repair, meaning that works become rescue related rather than preventative by the time it is possible to carry them out.
However, the consultation also revealed that much more and more robust evidence will be required before it will be possible to make any proposals for reform in this area.
We now intend, therefore, to investigate further the problems which discourage local planning authorities from using their powers in respect of buildings at risk, with a view to identifying potential reforms, both statutory and non-statutory.
Conclusion and next steps
The options as outlined in Chapter 2 will now be taken forward.
Those options requiring a legislative change will be introduced where possible into existing Government Bills (i.e. the Enterprise and Regulatory Reform Bill).
Those options for which we are seeking a non-statutory solution will be explored further by officials, in engagement with the heritage sector.
There are currently no plans to change the listed building consent rules beyond those already outlined above.
Annex A: List of respondents to the consultation
Acocks Green Focus Group
AD Practice Ltd
Amber Valley District Council
Ancient Monuments Society
Anthony Delarue Associates
Architects Accredited in Building Conservation
Association of English Cathedrals
Association of Industrial Archaeology
Association of Local Government Archaeological Officers