Heritage planning reforms are welcome, but local authorities may struggle to find resources and skills to implement them, says experts

Out-Law Analysis | 21 Dec 2012 | 4:46 pm | 4 min. read

OPINION: Reforms to the planning regime for heritage assets are welcome and will deliver more certainty in 2013, but the reforms will only work if local authorities are given the resources to implement them.

The reforms, which were announced this year as part of the Economic and Regulatory Reform Bill, will streamline the consenting process for heritage assets and reduce uncertainty. This is a welcome development but the plans will put strain on local planning authorities’ resources and may not be as effective with concerns that protection for the built heritage could weaken.

The streamlining of consents and increased certainty is something to look forward to in 2013 and beyond, and English Heritage has said that the reforms will "help deliver clearer and faster decisions, support timely understanding of the significance of heritage assets and potential development sites ... [and] focus effort and resources on managing changes".

As local authorities face increasing cutbacks and austerity measures the Government must outline how it expects them to meet the additional burden of implementing these changes.

The Bill will subsume conservation area consent into the town and country planning system so that in the future applications for demolition in a conservation area will be considered as part and parcel of a planning application by the local planning authority, abolishing the need for a separate consent. This is a sensible change that is likely to reduce the cost and administrative burden placed on promoters of new schemes. The local planning authority will still have the full range of enforcement options at its disposal in order to ensure protection of such heritage assets. Authorities will also have at their disposal a new offence of failing to obtain permission for ‘relevant demolition works’.

New Heritage Partnership Agreements will put management agreements on a statutory footing. Agreements between owners of heritage assets and the local planning authority and other parties such as the Secretary of State and English Heritage will abolish the need for repeat applications and the inevitable costs and resources that go hand in hand with such applications. Agreements cannot be used to grant consent for demolition and would be subject to periodic review, termination and variation.

Non-statutory management agreements have proved particularly useful for large twentieth century buildings and have led to substantial savings for owners of protected buildings which often require constant maintenance and repair. Concerns have, however, been expressed regarding the potential erosion of the special interest of these buildings. The benefits of Heritage Partnership Agreements are clear, however local authorities are likely to grapple with additional burdens and resourcing issues against a backdrop of cutbacks and austerity measures.

Heritage Partnership Agreements, once entered into, would be capable of relating to one or more listed buildings, or parts of listed buildings, and may grant listed building consent (with or without conditions), specify works that do not require consent or provide for works to be carried out whilst dealing with public access, maintenance and funding. The consent would run with the land, subject to the terms of the agreement and any new regulations made by the Secretary of State.  New regulations would set out the requirements for consultation and publicity for agreements prior to them being made or varied and may specify in more detail additional criteria that must be satisfied and any specific terms that must be included in agreements and not to be avoided.

The Bill will introduce new orders, seeking to replicate permitted development rights under the town and country planning regime. The orders would grant consent for specified works for the alteration or extension of listed buildings and would apply relevant conditions and exceptions. National class consent orders, made by the Secretary of State, would operate at a national level and the local equivalent, local class consent orders would be made by the local planning authority.

This will introduce a ‘lighter touch’ to controls, but it is difficult to see how these new orders would work, particularly at the national level, when an order is seeking to give deemed consent to broadly defined categories of work for certain heritage assets nationally when what requires protection is an asset’s special interest, likely in many cases to be unique. National and local authorities may or may not have the appetite, skill or resource for drafting such new orders or if they will fall back and rely on applications for listing building consent. That said, new national and local class consent orders may facilitate the development of historical assets, if taken up the orders will require very careful preparation and drafting to ensure the continued protection of a heritage asset’s special architectural or historic interest.

Applications for the grant of certificates of immunity from listing are to be simplified so that applications can be made at any time without the need to make a concurrent planning application which is a positive development. In addition, the Bill will allow applications to the local planning authority to determine whether or not proposed works for the alteration or extension of (or part of) a listed building are lawful and whether or not consent should be obtained, which will provide promoters and investors with more certainty on which to base decisions over proposed development schemes. If the authority is satisfied that the works described would be lawful, it will be obliged to issue a certificate, which will provide the applicant with a conclusive presumption in respect of lawfulness for the works unless a material change in circumstance takes place before the works are carried out. Recent tabled amendments to the Bill suggest a 10 year limit on the presumption.

Currently when a building is listed, structures and other buildings that are attached to it or within its curtilage, which is the area surrounding a dwelling, can become subject to protection as well, whether or not worthy of protection. Entries in the National Heritage List differ widely in detail; some entries will sometimes say that a particular feature is not of special interest, but this is currently not definitive. The Bill will allow future new list entries and list amendments to declare that structures or buildings attached to or within the curtilage of a listed building are not protected. It will also allow for a part or feature of the principal listed building to be declared definitively as not of special interest. This will not apply retrospectively and although the new measures will bring certainty, the benefits could take a long time take effect.

Emma Bennet and Sherryll L'Oken are planning law experts at Pinsent Masons, the law firm behind Out-Law.com