Enterprise and Regulatory Reform Act: Changes to heritage planning

Enterprise and Regulatory Reform Act: Changes to heritage planning


Author: Matthew Stimson

Significant changes to the law concerning Listed Buildings and Conservation Areas are set to be made under the Enterprise and Regulatory Reform Act, which received Royal Assent on 25 April.

The changes (contained in Part 5, sections 60-63 and Schedules 16 and17 of the new Act under the general heading: Reduction of legislative burdens) aim to reduce red tape and make it easier to undertake works that do not affect the special architectural or historic character of listed buildings.

When they come into force, the changes will take effect as amendments to relevant sections of the Town and Country Planning Act 1990 (TCPA) and the Planning (Listed Buildings and Conservation Areas) Act 1990 (LBCA).

The changes will only apply to England. For the time being, the law in Wales will remain unchanged.

Conservation Area Consent

The need to obtain Conservation Area Consent for the demolition of an unlisted building in a conservation area in England will be removed.

Instead, such works will require planning permission. The need to obtain the consent of the local planning authority will therefore remain, but it will no longer be necessary to make two separate applications (one for planning permission and one for Conservation Area Consent) for a scheme involving the demolition and replacement of a building in a conservation area.

Listing of buildings

Currently, when a building was listed, any structure or object attached to the building and any structure or object within the curtilage of the building which has been there since 1948 was also listed, whether or not it makes any contribution to the architectural or historic interest in the building itself. Work affecting those structures or objects would require Listed Building Consent.

The Act will change this by allowing for certain structures or objects to be specifically excluded from the listing and for specific features of a building to be identified as lacking architectural merit.

This will allow works to be carried out which would previously have required Listed Building Consent. It will also assist developers and heritage officers to reach a consensus about what should and should not be done to a particular building.

The measure will not only affect new listings; it will also allow listings to be updated for each of the existing 376,000 listed buildings in England.

Heritage Partnership Agreements

The Act provides for owners of listed buildings to enter into Heritage Partnership Agreements (HPA) with their local planning authority as an alternative means of obtaining consent for the alteration or extension of the building.

The HPA will also be a means of specifying works which would not affect the character of the building; making provision about the maintenance and preservation of the building; providing for public access to the building; and obtaining public subsidy for works to the building.

This will be particularly useful to any person undertaking extensive renovation of a Listed Building or who is proposing to use a listed building in a way likely to require ongoing maintenance or future works.

To that end, it will be possible for other parties to join the HPA, including (where relevant) the Secretary of State, English Heritage and anyone else that may be appropriate by virtue of their interest in, occupation, management or knowledge of the listed building.

Regulations will be made concerning the terms of the agreement and the procedures that must be followed before an HPA is entered into, including consultation, publicity and consent of the Secretary of State.

Listed Building Consent Orders and Local Listed Building Consent Orders

The Act will allow the Secretary of State to make Listed Building Consent Orders and for local planning authorities to make Local Listed Building Consent Orders authorising particular works for the alteration or extension of listed buildings in England.

These will work in a similar way to Development Orders granting permitted development rights under the TCPA such that, in relation to the works specified in the order, it will not be necessary to apply for Listed Building Consent.

The Consent Orders may grant consent either unconditionally or subject to conditions.

Consent Orders made by the Secretary of State will be capable of applying to the whole of England, although it will be possible for the Secretary of State to exclude certain buildings or certain areas from the order.

Local Listed Building Consent Orders will only apply to listed buildings within the area administered by the local planning authority making the order.

Certificate of Lawfulness

The Act provides for Certificates of Lawfulness to be issued determining whether works to a listed building can be carried out without Listed Building Consent.

Under the Act, works to a listed building will be lawful if they do not affect the character of the listed building as a building of special architectural or historical interest. This is another potentially significant change, particularly in light of the provisions in the Act relating to improving Listing Descriptions and HPAs (see above).

Regulations will be made concerning the form and procedure for making an application for a Certificate.

Certificates of Immunity

Any person proposing to carry out development may obtain a Certificate of Immunity that buildings affected by the development will not be listed for at least five years.

This can be a very useful tool - giving certainty to a project. Currently, however, an application for a certificate can only be made after planning permission has been granted.

The Act allows for certificates of immunity to be applied for at any time, thereby allowing developers to avoid the significant financial risk of obtaining planning permission.