Heritage planning regulation under the Enterprise & Regulatory Reform Bill

The 2012 Bill has passed its Commons stages and is currently in Committee in the Lords. The next Committee hearing is 9th January 2013 and the position could still change before final Royal Assent.

Clauses 52 to 55 and schedule 17 of the Bill, in the version printed following first reading in the Lords, would amend both planning and historic environment legislation (at least in England).

The Bill proposes, among other things, the following:

• the Abolition of Conservation Area Consent (CAC);
• changes to the Listing regime; and
• the introduction of Certificates of Immunity from Listing (CILs), Heritage Partnership Agreements (HPAs), Listed Building Consent Orders (LBCOs) and Lawful Works Certificates (LWCs).

Abolition of CAC

CAC is to be abolished and reproduced in the planning system.

The proposal includes changes to the Town and Country Planning Act 1990 (the Planning Act):

• Making it a criminal offence to carry out relevant demolition (i.e. demolition of a building in a conservation area not excluded by s75 Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act) or a direction made under it) without planning permission (new s196A(1) Planning Act);
• Applying the health and safety exception in s9 Listed Buildings Act to this provision;
• Allowing local planning authorities (LPAs) to retain the usual range of enforcement provisions and giving English Heritage power to prosecute or seek an injunction in respect of relevant demolition;
• Creating a new ground of appeal against an enforcement notice where relevant demolition was urgently necessary in the interests of health and safety; and
• Providing that there would be no time limit for taking enforcement action against relevant demolition by virtue of a new sub-section (2A) in s171B Planning Act.

Listing

The Bill proposes (new s1 (5A) Listed Buildings Act) to enable a listing to be narrowed by the list providing that:

• any object or structure fixed to the building or any pre-1948 curtilage structure is not to be treated as part of the building for listing purposes; and
• that any part or feature of the building is not of special architectural or historic interest.

CILs

Certificates of Immunity from Listing would (new s6 (A1) Listed Buildings Act) be able to be granted without a planning application or planning permission for the alteration, extension or demolition of the building. 

HPAs

New ss 26A and 26B would be inserted into the Listed Buildings Act to provide for HPAs.

An HPA would be agreed between the LPA and the owner of a building or part of a building. An HPA might also include the Secretary of State, English Heritage, other LPAs, persons interested in, occupying or involved with managing the building and any other person with special knowledge of the building or listed buildings more generally.

It would have to be in writing and provide for periodic review, termination and variation. An HPA may also grant listed building consent, with or without conditions, and such consent will run with the land. HPAs may also specify works which do not require consent, provide for works to be done and deal with public access and funding.

Apart from the need to comply with any conditions on a listed building consent (if works are carried out under it), a heritage partnership agreement will not bind non-parties, nor does it run with the land.

Consultation, publicity and the terms of any agreement may be specified in regulations by the Secretary of State. Indeed, the requirements for consultation and publicity in the regulations will be of particular importance if listed building consent is to be granted.

LBCOs

LBCOs will grant consent for certain works subject to any specified conditions (new ss 26C and 26D). These orders will operate either at a national level (made by the Secretary of State), or locally (made by the LPA). These are analogous with the General Permitted Development Order and local development orders.

LWCs

The proposed s26H Listed Buildings Act would introduce CLWs for listed buildings which might cover proposed works or those which have already been carried out and would be a useful reform providing a formal mechanism for resolving such questions or issues.