Too ‘Conservative’ a Solution? The Conservation Area Test
| Date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02847.x |
| Published date | 01 September 1992 |
| Author | Simon Payne |
7;h~
Modim
LUN~
Roiew
IVOl.
5s
Too ‘Conservative’ a Solution? The Conservation
Area Test
Simon
Payne*
For
some years there has been a growing body of authority concerning the exact
effect of designation as a conservation area. Originally introduced under the Civic
Amenities Act 1967, designation takes place where a local planning authority
determines that part of its area is of special architectural
or
historic interest, the
character of which
it
is desirable to preserve
or
enhance’ and follows procedure
for
designation.? Conservation areas have been a considerable success, at least
in
terms
of
the total number of areas designated.’ The other major system for protect-
ing this country’s built heritage, through listing buildings of special architectural
or
historic interest by the Secretary of State,4 has also been very widely used.5
Litigation concerning the effect of a conservation area designation has reached
a
climax
in
two recent decisions, that of the Court of Appeal
in
Bath Sociery
v
Secretary
of
State for the Environmenth
and the House of Lords
in
South Lakeland District
Council
v
Secretary
of
State for the Environment and Carlisle Diocesan Parsonages
Board.’
Both cases concerned the precise meaning and effect
of
the ‘conservation area
test.’ This is set out
in
s
72(
1)
of the Planning (Listed Buildings and Conservation
Areas) Act 1990, which states that when making decisions under the planning
Acts,X
if
the land concerned is within a conservation area, ‘special attention [shall
be
paid]
. . .
to the desirability of preserving
or
enhancing the character
or
appearance
of that area.’
A
wide range
of
decisions might invoke the ‘conservation area test,’
most commonly applications for planning permission and appeals against refusals
of permission
or
conditional planning consents, applications for conservation area
consent, listed building consent and decisions as to whether to enforce planning
controls. The duty applies equally to local planning authorities and the Secretary
of State
or
his Inspectors on appeals
or
called-in applications.
The decisions
in
Bath Society
and
South Lukeland
are of wider importance than
simply clarifying the ‘conservation area test’
-
similar statutory words are used
in
relation to the effect
of
a listing of a building.’ The ‘listed building test’ which
surprisingly has not been the subject of much litigation is similar.”’ It appears
in
*Plymouth Business School, University
of
Plymouth
I
2
3
4
5
6
7
n
9
I0
Planning (Listed Buildings and Conservation Areas) Act
1990,
s
69.
formerly Town and Country
Planning Act
1971,
s
277.
There is
no
formal statutory procedure beyond the notification requirements
of
s
70
of
the Planning
(Listed Buildings and Conservation Areas) Act
1990.
although
DoE
Circular
8/87
recommends that
there should be local consultation:
see
paras
53-58,
There are estimated to be
6.300
designated conservation areas
in
England and Wales.
Planning (Listed Buildings and Conservation Areas) Act
1990.
s
I(I).
This
Coiniiion
Inhcv-irciiic~,.
para
9.32
reports a total
of
433,654
listed buildings
in
1989.
119911
I
WLR
1303.
119921
2
WLR
204.
s
336
of
the Town and Country Planning Act
1990
defines the planning Acts as that Act. the Planning
(Listed Building and Conservation Areas) Act
1990,
the Planning (Hazardous Substances) Act
1990
and the Planning (Consequential Provisions) Act
1990.
Planning (Listed Buildings) Act
1990.
s
66(1).
Although
it
is clearly established that such a similar duty
does
exist and should he appl~ed.
see
71w
Truste~s
~fth~
Bristol
Mri4iig
Rooni
v
Si~cri~lciry
of
Srtrrc,
jiw
rhc
Eiii*ironnicvrr
mtl
Bristol
City
Comcil
119911
JPL
153,.
726
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