Listed Buildings and Conservation Areas

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Chapter 23

Listed Buildings and Conservation Areas

INTRODUCTION

23.1 This chapter covers the preservation of listed buildings and conservation areas (both of which are governed by the Planning (Listed Buildings and Conservation Areas) Act 1990 (better known as the Listed Buildings Act 1990 (LBA 1990)).¹This Act provides specific protection for buildings and areas of special architectural or historic interest. The Ancient Monuments and Archaeological Areas Act 1979 provides specific protection for scheduled monuments, and the Protection of Wrecks Act 1973 provides specific protection for protected wreck sites. Any decisions relating to listed buildings and their settings and conservation areas must address the statutory considerations of the LBA 1990.²

23.2 The conservation of heritage assets is a core planning principle. In the case of buildings, generally the risks of neglect and decay of heritage assets are best addressed through ensuring that they remain in active use that is consistent with their conservation. Such assets are therefore likely to require changes to be made from time to time in contrast to archaeological sites where periodic changes may not be necessary. Where changes are proposed, the National Planning Policy Framework 2012 (NPPF) sets out a clear framework for both plan-making and decision-making to ensure that heritage assets are conserved and, where appropriate, enhanced, in a manner that is consistent with their significance.³

¹For national policy and guidance see: (a) NPPF paras 126–141 (within the section ‘Conserving and enhancing the historic environment’); and (b) in the corresponding section within the NPPG starting at Paragraph: 001 Reference ID: 18a-001-20140306.

²See in particular ss 16, 66 and 72, as well as satisfying the relevant policies within the NPPF and local development plan.

³The policy in addressing substantial and less than substantial harm to designated heritage assets is set out in the NPPF, paras 132–134.

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CORE POLICIES IN ADDRESSING SUBSTANTIAL AND LESS THAN SUBSTANTIAL HARM IN THE NPPF

23.3 The policy in addressing substantial and less than substantial harm to designated heritage assets is set out in the NPPF, paragraphs 131 to 134:

131. In determining planning applications, LPAs should take account of:

♦ the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;

♦ the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality;

♦ the desirability of new development making a positive contribution to local character and distinctiveness.

132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II listed buildings, grade I and II registered parks and gardens, and World Heritage Sites, should be wholly exceptional.

133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, LPAs should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:

♦ the nature of the heritage asset prevents all reasonable uses of the site; and
♦ no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation;
♦ conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and
♦ the harm or loss is outweighed by the benefit of bringing the site back into use.

134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

PRESERVATION OF LISTED BUILDINGS

23.4 Ministerial powers and duties in relation to listed building control vests in the Department for Digital, Culture, Media & Sport (DCMS) (and in Wales by

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the Welsh Government). The DCMS is responsible for identifying and compiling lists⁴of buildings of special architectural or historic interest or approving, with or without modifications, such lists as are compiled by Historic England (officially, the Historic Buildings and Monuments Commission for England),⁵or by other persons or bodies, and may amend any list so compiled or approved.⁶The purpose of listing is with a view to the guidance of local planning authorities (LPAs) in the performance of their functions⁷and to prohibit unauthorised works to listed buildings.⁸It should be noted that LPAs also identify (and locally list) non-designated heritage assets. These are buildings, monuments, sites, places, areas or landscapes identified as having a degree of significance meriting consideration in planning decisions, but which are not formally designated as heritage assets.⁹

⁴Listed buildings are in practice classified as Grade I or Grade II. There is no statutory requirement for this. Grade I buildings are buildings of exceptional interest, whereas Grade II buildings are particularly important buildings of more than special interest which warrant every effort being made to preserve them (see Circular 1/07, para 6.6). The procedure by which buildings are added to the list is informal and reference should be made to the DCMS guidance ‘Principles of Selection for Listed Buildings’ (March 2010).

⁵Historic England identifies and designates registered parks, gardens and battlefields. World Heritage Sites are inscribed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO). In most cases conservation areas are designated by LPAs. Historic England administers all the national designation regimes.

⁶LBA 1990, ss 1(1)–(3). The Secretary of State is not required to consult the owner of a building that it is intended to be listed (although it is open to any person to contend on appeal from a refusal of listed building consent that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under s 1 (see s 21(3)). If, however, the Secretary of State decides that a building should be listed then he must notify the LPA who must notify the owner and occupier (s 2(3)). To introduce an element of certainty about listing, it is possible to apply to the Secretary of State for the issue of a certificate that he does not intend to list the building. The issue of such a certificate will preclude the Secretary of State from listing the land for a period of five years (LBA 1990, s 6).

⁷Under the TCPA 1990, and the LBA 1990 (see s 1(1)).

⁸The term ‘listed building’ may include, in addition to the building itself (unless the list entry indicates otherwise): (a) any object or structure fixed to a building; and (b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1/7/1948 (s 1(5)). There are a number of authorities on what will constitute a structure within the curtilage of a listed building: Debenhams plc v Westminster City Council [1987] AC 396; Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [1999] JPL 932; Lowe v First Secretary of State [2003] 08 EG 129 (CS); Sumption v Greenwich London Borough Council [2007] EWHC 2776 (Admin). The prohibition on works to listed buildings may involve works to the interior of the building if they affect the special character of the building (see s 1(5)) or works which do not even fall within the definition of development or which are permitted developments.

⁹NPPF, para 135, provides as follows:
‘The effect of an application on the significance of a non-designated asset should be taken into account in determining the application. In weighing applications that affect directly or

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Sanctions

23.5 The result of listing is that it becomes an offence¹⁰to carry out any works for the demolition of the building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest without listed building consent.¹¹The LPA may (in addition to prosecution) also issue a listed building enforcement notice with a view to the

indirectly non designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset.’

See also: (i) NPPG at Paragraph: 039 Reference ID: 18a-039-20140306; (ii) NPPG at Paragraph: 040 Reference ID: 18a-040-20140306, which deals with non-designated assets of archeological interest (see NPPF, para 139); (iii) NPPG at Paragraph: 041 Reference ID: 18a-041-20140306, which deals with the identification of non-designated heritage assets (local lists incorporated into local plans identify non-designated heritage assets which are judged against...