DCMS CONSULTATION: ENTERPRISE AND REGULATORY REFORM ACT 2013 SECONDARY LEGISLATION TO ACCOMPANY THE HERITAGE PROVISIONS CLA RESPONSE PREFACE Collectively, CLA members manage at least a quarter of the listed building stock, and make an equivalent number of listed building consent applications, so the CLA is a major stakeholder in this area. The CLA believes strongly in the protection of listed buildings. Because of their very high maintenance costs, protection is of course only possible in the long term if the system allows, and indeed encourages, the sympathetic change that is essential if listed buildings are to remain relevant to and valued in the future. CHAPTER 3: LISTED BUILDING HERITAGE PARTNERSHIP AGREEMENTS (LBHPAS) 1. Do you agree that the duration of a Listed Building Heritage Partnership Agreement should be left to the discretion of individual local planning authorities? If no, should the maximum duration of the Agreement be set at three, five or ten years? Can you briefly summarise the reasons for your answer. Yes, for simplicity and flexibility, duration should be left to the discretion of the parties. There are two main and conflicting factors here: (a) (b) cost, viability, and delays: the work required to enter into an LBHPA will be expensive, and owners are unlikely to be willing to enter into them if the cost had to be written off over a short period. Furthermore, where works are involved, work to listed buildings is often time-consuming to set up, and is frequently delayed for funding or other reasons. These factors will suggest the need for a duration of at least 10 years, often more. A maximum duration of 3 or 5 or even 10 years could make this project largely pointless. changes over time: perceptions of what is of special interest (heritage significance) may genuinely change, so that in say 20-25 years something which is now seen as non-significant may be seen as more important. There is also the possibility of other change, eg to the building s setting, affecting perceptions of significance. Indefinite or very long LBHPAs could thus lead to loss of significance. This suggests a maximum length in most cases of 20-25 years. These factors could best be reconciled by: the regulations stipulating that a LBHPA must have a fixed end date, but not stipulating a maximum length (if the regulations did stipulate a maximum length, this should not be less than 25 years). guidance explaining the two factors (a) and (b) above, and suggesting how the parties should assess the optimum length of the LBHPA. For example, if the primary purpose of the LBHPA is to allow a series of one-off works, the duration might
E&RR Act 2013 Heritage provisions Page 2 of 12 perhaps be the expected duration of works plus a significant allowance for delay. Where the LBHPA is to allow recurrent work, or simply to set out agreement on what is significant and requires LBC and what does not (see Q4), a longer duration will be appropriate. Guidance might suggest that durations of less than 5-10 years, or longer than 20-25 years, will be unusual. It is important to note that: (a) (b) (c) the duration will always be in the control of the LPA. Of course if it chooses to set a duration which is too short then the LBHPA will simply not happen. English Heritage, and others during the public consultation, will be able to comment on the duration, and the LPA must take these comments into account. the duration will also always be in the control of the Secretary of State, and the LPA can revoke a LBHPA if it feels it is no longer appropriate (compensation may be payable in this case, but this is we think rare in practice). 2. Do you agree that local planning authorities should only consult English Heritage on the proposed grant of listed building consent included in draft Listed Building Heritage Partnership Agreements where they cover Grade I and II* listed buildings? Don t Know If no, what do you think would be appropriate and why? This is clearly a subset of a wider forthcoming debate on the requirement to consult EH on LBC applications. Subject to that, our preliminary suggestion is that (at most) the same rules should be applied to LBHPAs as to LBC applications. On average, the maximum potential impact of LBHPAs should be less than for LBC applications because LBHPAs cannot cover demolition. 3. Do you agree that local planning authorities should only be required to specifically notify known owners of the listed building who are not party to the Agreement of the proposed listed building consent, with any further notification being left to the local authority s discretion? Note: owners also include any tenants with not less than seven years of a term certain remaining unexpired. If no, please explain why? Yes this seems proportionate. 4. Do you have any other comments on the draft regulations for Listed Building Heritage Partnership Agreements? To repeat a point we made in earlier consultation stages, we do not see the LBHPA project as in any way transformational, or as making much contribution to solving the growing crisis in the LBC system, not least because we do not think there will be many LBHPAs in practice. This is because:
E&RR Act 2013 Heritage provisions Page 3 of 12 (iii) (iv) the costs to the owner of setting them up will be high (especially if, as seems likely, many LPAs might refuse even to enter into discussions unless the owner has agreed to bear all their costs as well as his/her own). pilot studies suggested that some LPA staff object in principle to fettering their ability to take a different decision at a later date, and may be reluctant to enter into LBHPAs, or reluctant to allow LBHPAs of a sensible duration. the owner would be spending money entirely at risk until the LBHPA is actually confirmed, making owners even more reluctant to contemplate LBHPAs. perhaps most importantly, most work requiring LBC is one-off works for which LBHPAs will not be appropriate. We suspect therefore that there will be few LBHPAs (and many of those which do happen will have been at least part-funded by English Heritage, because of its long-running enthusiasm for the LBHPA concept). Several CLA members have been involved in HPA pilots involving English Heritage, but some failed to be completed, and the others had mixed outcomes. Having said this, however, we do think there is some value in LBHPAs, perhaps in a few specific cases: (a) (b) (c) (d) Owners who need to make repeated changes to listed buildings and are unsure whether these require LBC or not. A real-life example is a racecourse company with a listed grandstand which needed to move its bars around frequently and never knew whether it needed LBC to do this; the primary purpose of an LBHPA there would of course not be to grant consent for one specific change, but to establish in a binding way what in the listed building is significant and what is not, so that the company would know what it could do without LBC and what it could not. Owners (like major educational institutions, and a minority of big landed estates) which already have detailed property management plans, so much of the cost of an LBHPA has already been incurred. Owners who want LBCs which they can be sure will be valid for more than the usual 3 years, for example for a programme of works to several listed buildings over many years. Some local authorities may wish to use LBHPAs for their own buildings (conflict of interest needs to be resolved in these cases). It is therefore important that the regulations and guidance do not discourage the use of LBHPAs in the minority of cases in which they might be helpful. Finally, turning to the guidance, it is important that at least key stakeholders are consulted on this at a draft stage.
E&RR Act 2013 Heritage provisions Page 4 of 12 CHAPTER 4: LOCAL LISTED BUILDING CONSENT ORDERS (LLBCOs) 5. Do you agree that local planning authorities should only consult English Heritage on draft Local Listed Building Consent Orders where they cover Grade I and II* listed buildings? As Q2. Don t Know If no, what do you think would be appropriate and why? 6. Should local planning authorities only be required to notify known owners of listed buildings of the draft Local Listed Building Consent Order? The need for any further notification would be at the local authority s discretion. Note: owners also include any tenants with not less than seven years of a term certain remaining unexpired. As Q3. If no, who else should be notified as a minimum requirement and why? 7. Do you agree that the duration of a Local Listed Building Consent Order should be left to the discretion of individual local planning authorities? If no, should the maximum duration of an Order be set at three, five or ten years? Can you briefly summarise the reasons for your answer. Yes: this should be left to the discretion of the LPA. As with LBHPAs, the work required to enter into a LLBCO will be expensive and LPAs are less likely to be set up LLBCOs if the cost had to be written off over three or five or even 10 years. The regulations should certainly not set a maximum duration, and indeed it is not essential even to have an end date, because the LPA could terminate a LLBCO at any time (without a requirement for compensation provided it gives 6 months notice). Guidance could suggest that, if an end date is thought necessary, a normal duration should be 15-25 years unless there is a specific reason for a shorter duration. Guidance should suggest a review of a LLBCO at intervals of say 6-10 years. 8. Do you have any other comments on the draft regulations for Local Listed Building Consent Orders? We have several comments: 8.1 Firstly, to repeat a point we made in earlier consultation stages, we do not see the LLBCO project as in any way transformational and we do not think there will be many LLBCOs in practice, especially because:
E&RR Act 2013 Heritage provisions Page 5 of 12 the costs to the LPA of setting them up will be high (we suspect that few LPAs will even consider this unless, perhaps, EH or a residents group has volunteered to bear some of their costs). some or much work requiring LBC is likely to be one-off work which LLBCOs will probably not cover. We think therefore that there may be few LLBCOs, and most of those which do happen will probably have been at least part-funded by English Heritage. However, we do think there is some value in LLBCOs, and any which are set up will once in place be of value to affected owners and the LPA, so it is important that the regulations do not discourage their use. 8.2 Secondly, the 28-day consultation period seems short; 35 or 42 days would seem more appropriate. Having said this, it seems unlikely that many LLBCOs would be controversial. 8.3 Otherwise the draft regulations look sensible and proportionate. 8.4 The CLWLB procedure (see below) should be available for owners who want to use it where a LLBCO is in place. 8.5 Finally, turning to the guidance, it is important that at least key stakeholders are consulted on this at a draft stage.
E&RR Act 2013 Heritage provisions Page 6 of 12 CHAPTER 5: CERTIFICATES OF LAWFULNESS OF PROPOSED WORKS TO LISTED BUILDINGS (CLWLBs) 9. It is proposed that Certificates of Lawfulness of Proposed Works should be determined by the local planning authority within six weeks. Do you agree? If no, what alternative timescale would you propose and why? Yes. Although most users of the system might expect it to be possible to take what might appear to be a simple decision within 2-4 weeks, it must be recognised that in most local authorities there are now few (if any) staff with the skill needed to take the decision, so a 2-4 week timescale is probably unrealistic; 6 weeks seems a sensible compromise (but see Q11 below). 10. The procedures that are being developed for Certificates of Lawfulness of Proposed Works are intended to be light touch to avoid creating any unnecessary burdens while still ensuring an appropriate level of protection for listed buildings. Do you agree that the regulations are sufficiently light touch? If not, how and why should they be amended? As far as they go, the regulations seem sensible and light touch. It is however vital to ensure that the surrounding procedures within the LPA application process are as straightforward, simple, and appropriate as possible (see Q11 below). 11. Do you have any other comments on the draft regulations for Certificates of Lawfulness of Proposed Works? We think it very important that the procedures not only in the regulations but also in national and local authority guidance are as user-friendly to all parties as possible. Every hour and every pound invested in optimising procedures will save hundreds of hours and thousands of pounds of cost for applicants and LPAs in future. Electronic applications 11.1 Firstly we think it vital, as proposed, that CLWLB applications can be made using 1APP as well as on paper, and it would be helpful if the CLWLB 1APP process can be created fairly quickly. 11.2 It is also important that the regulations make it clear that the procedure is otherwise the same; this currently seems ambiguous, because it looks at first sight as if paragraph (4) only applies if the application has not been made electronically. It would be clearer if the words under paragraph (1) were inserted into paragraph (2), so paragraph (2) reads Where an application under paragraph (1) is made using electronic communications ). Processes 11.3 Secondly, it is important that the CLWLB and LBC application processes fit together as seamlessly as possible. While there will be cases where it seems self-evident that LBC is not needed, even then there may be many cases where the LPA then refuses the application (see Monitoring below). There will be other cases (especially in the
E&RR Act 2013 Heritage provisions Page 7 of 12 absence of any guidance, see Q13 below) where it is not at all clear whether LBC is needed. There is therefore a real danger that the end result could even be more complicated and take longer than the current process: the applicant first submits a CLWLB application, then waits up to 6 weeks for a decision, and then if that is negative he/she then has to begin all over again with a separate fresh application for LBC. The LPA also has then had to process two applications rather than one. 11.4 It would seem much better, at least where 1APP is being used, to have a single straightforward application, almost identical to the current 1APP LBC application process, in which the applicant ticks a box suggesting that the works do not require LBC and that the LPA should grant a CLWLB (as opposed to ticking another box which suggests that it should be treated immediately as a LBC application). The LPA can then either grant the CLWLB, or refuse it and treat the application as a LBC application without the need for a further application. A little thought could make this as simple as possible for all parties; and the applicant on being notified that it was being treated as a LBC application could submit further information if he/she thought that necessary. This would seem better than a procedure of two different application approaches in two different stages. (We would also suggest, although this is outside the scope of this consultation, that the CLD etc procedures in the planning system should be brought into the C21st in the same way. Process-simplifying changes like these would do much to reduce the constant criticism that although Government talks about simplifying the system, it s actually just adding in ever more complexity ). Monitoring 11.5 Some LPAs may make a practice of refusing CLWLBs almost as a matter of course, either because they believe as many do that LBC is always required for any work to a listed building, or in the hope that no LBC application will follow (there may be a lot of cases where the applicant simply gives up and abandons the proposals; this is especially likely in cases where the work would have been in the public interest because it would have been good for the building, but is not financially rewarding). 11.6 It is very important therefore that: there is an appeal procedure, as proposed, the existence of which will discourage vexatious rejections and delays, and monitoring is in place so that the CLWLB refusal rates can be compared between LPAs and anomalies picked up and acted on. These statistics need to be publicly available. Guidance 11.7 We think guidance is important. This should obviously cover procedures, as above, and it should always be clear to the applicant what is going on, so for example the LPA s response to an application should be to say something like we have received your application one of the following will happen next: we will grant the CLWLB, or we will request further information because you have not provided enough, or we will refuse it [and treat this as a LBC application] but you can appeal, or you can appeal if we have done nothing by. 11.8 Guidance should also cover what the applicant has to provide. This is clear in outline in the draft regulations, but separate guidance on the detail should ensure as far as possible that what is provided should be (a) adequate for a decision to be made, but also (b) proportionate in the context of works which mostly will not require LBC.
E&RR Act 2013 Heritage provisions Page 8 of 12 Revocation 11.9 If we understand this right, revocation of a CLWLB is (under the new s26(6) of the 1990 Act) allowed only where the applicant supplied false information, or withheld material information. If so, given that this is the fault of the applicant, the ability to revoke, and the absence of the compensation normally payable on revocation, seem reasonable. 11.10 However, the 14-day period in 4 (2) for the applicant to defend him/herself seems much too short: the applicant (whose possible wickedness is at that point unproven) may be away, and/or may wish to take planning/legal advice. 11.11 If the CLWLB could be revoked in other circumstances, compensation would be needed in the usual way. Absence of consultation 11.12 We agree that there would be no logical reason for public consultation: a CLWLB of course is simply confirming that the work described in the application does not affect the special interest of the listed building and thus does not require LBC. If the work does not need LBC, then under the current system there is of course no need to apply, and no need for consultation. 12. Do you consider that this new system of Certificates of Lawfulness of Proposed Works will encourage applications from people who would otherwise have, correctly, not applied for listed building consent and gone ahead with the proposed works? Don t Know If yes, what steps might be taken to address this point and how might they be helpful? We think this may happen to some extent (and there may also be cases where applicants make simultaneous CLWLB and LBC applications for the same works, so that the applicant does not have to start all over again if the LPA decides not to grant the CLWLB). On the other hand, there will be cases where applicants who are now making LBC applications for works they do not think need LBC (because this is the only way of obtaining certainty) will instead make CLWLB applications in future, which should be easier for the LPA to handle. There are two steps which would (among other benefits) significantly reduce any problem: At the root of these issues is the high current level of uncertainty as to whether LBC is required or not. Guidance could substantially reduce this (see Q13). Getting the procedures right (see Q11 above) is of great importance. 13. Are there any other steps that could be taken to provide greater certainty about when listed building consent is or is not required? For example, improved guidance? Yes, definitely. The lack of certainty about whether LBC is required is a significant factor in the progressive collapse of the LBC system, a collapse which is obvious from the EH/IHBC/ALGAO local authority conservation resourcing statistics and from anecdotal evidence from users. There are two steps which would (especially together) be transformational: guidance and the effective use of national LBC orders.
E&RR Act 2013 Heritage provisions Page 9 of 12 Guidance The lack of any substantive national guidance on LBC and the need for LBC causes a variety of real problems: (iii) (iv) (v) the resulting vacuum has been filled by a collection of myths and misunderstandings, for example that LBC is not needed for internal works to Grade II listed buildings, or a (wholly understandable) assumption that LBC is not needed for curtilage structures not mentioned in the list description. This leads to real problems when owners or developers later discover that LBC was required for works they or previous owners carried out, sometimes years beforehand (this often causes a crisis when the building is being sold). In at least a small minority of cases it may also lead to work being carried out which is damaging to the significance of the listed building. what little guidance exists mostly devised by LPAs to fill the national guidance vacuum is highly inconsistent and almost always factually incorrect, causing further confusion. the standard advice to consult your conservation officer is extremely unhelpful both to the owner or developer and to the LPA. It creates an expectation that the LPA can and will answer such questions, and a significant workload of enquiries for overloaded LPA staff. In practice owners usually cannot track down a conservation officer, even in the falling number of LPAs where there still is a conservation officer, and whomever they do speak to will seldom give a clear answer, partly because over the telephone it may be hard to establish whether special interest will be affected or not. Many LPA staff apply the precautionary principle approach and say that LBC is required even where it is not, adding to the application workload of the LPA. The lack of national guidance allows many LPAs to claim (at least orally, and sometimes even in writing) that all work to listed buildings requires LBC, which is clearly incorrect. the lack of guidance breaks a primary planning system principle because it creates huge uncertainty and inconsistency: one LPA officer will say that LBC is required and another will say that it is not, there is no guidance to help them or to show who is most likely to be right, and the presumption that courts will not interfere with LPA decisions unless they are manifestly wrong leaves LPA staff free to apply almost any interpretation they wish. more generally, the lack of guidance definitely creates an impression that the system is incompetent and has not been properly thought through. That is damaging to perceptions of the system, and damaging to heritage, because the perception that the system is not competent and an inconsistent lottery strongly discourages work to listed buildings, especially the work needed to keep them viable and relevant to the future. It also discourages the ownership of listed buildings at all. Both factors threaten the long-term survival of listed buildings (as well as development and economic growth). We do not accept claims that it is impossible to write guidance. Of course it would not be possible to write guidance which would give black-and-white answers in 100% of cases, or to say that type of work x always requires LBC and type of work y never does. The point of guidance is to set out the statutory and other background and then to assist the required judgements and make them as consistent as reasonably possible. Good guidance will probably suggest a wholly or reasonably clear answer in 70-90% of cases, and it will at least inform the other 10-30%. Importantly, guidance suggesting an answer in 70-90% of cases would free up LPA staff to focus on the remaining 10-30%. It would also provide a much stronger background to prosecution or enforcement where that was appropriate. This would be a huge step forward from the current mess of uncertainty and inconsistency (and
E&RR Act 2013 Heritage provisions Page 10 of 12 the time taken to create it would be a fraction of the time EH has spent on guidance on (say) setting, views, or enabling development). In Wales the 2013 Welsh Government consultation proposals in the historic environment review The future of our past included a proposal (P27) to provide greater clarity through guidance on what works do and do not, in the opinion of the Welsh Government, require LBC. 90 per cent of a wide range of respondents agreed or agreed strongly with this, and this proposal is being taken forward alongside others. The CLA itself has written guidance on the need for LBC which we know CLA members find extremely helpful, because they tell us so. CLA guidance of course has no standing with LPAs or courts; good guidance from EH would be much more helpful. In drawing this up, of course, EH should consult at least key stakeholders. Streamlining the LBC system The other step which would dramatically improve the protection of listed buildings is the much greater use of national LBC orders (see Q14).
E&RR Act 2013 Heritage provisions Page 11 of 12 CHAPTER 6: NATIONAL LISTED BUILDING CONSENT ORDERS (NLBCOs) 14. Do you have any comments on the proposed approach for making National Listed Building Consent Orders? NLBCOs will inevitably be ad hoc, and each requires both consultation with EH and parliamentary approval, so there seems to be little point in specific regulations. It will be interesting to see how the Canal & River Trust NLBCO develops, but we are doubtful whether there will be many bodies wishing to go through this process, given the costs and constraints involved. More importantly, the BIS-sponsored Penfold Review recommended a much wider use of NLBCOs, and CLG is committed to investigating that further. Although the consultation document does not say this, EH however appears to be determined to limit NLBCOs to collections of listed buildings belonging to single bodies. Refusing to contemplate any wider use of NLBCOs is a death wish for listed building protection. It is all too clear that governments of all kinds are rightly or wrongly simply not willing to resource the current LBC system. We can improve the system so that it does work, or we can refuse to contemplate substantive change and watch it collapse. NLBCOs should be a key part of improving listed building protection. Two obvious and effective examples are (in outline): detailed individual NLBCOs for each of (say) rewiring, or installing heating or new kitchens, or repointing, drawn up by EH, which would say that the activity in that consent order does not affect special interest and does not require LBC provided the user complies with the list of conditions in that specific consent order. Users would then tender for rewiring (etc) on the basis that the contractor would comply with the conditions in the consent order. This has great advantages over the current system. These NLBCOs would substantially improve listed building protection, not only by reducing LPA enquiry caseloads, reducing the number of LBC applications, and freeing up LPA staff for other activities like (importantly) targeted enforcement, but also by discouraging harmful works, and creating a steady workload for contractors who would have an incentive to develop the skills needed to comply with the conditions in each NLBCO. These are also a highly efficient use of resources because each NLBCO only has to be drawn up once by EH, which has access to appropriate expertise, rather than the LLBCO approach in which each LPA would have to reinvent the wheel (and probably does not have access to the same expertise). They would also encourage owners and developers to see heritage protection as something which works seamlessly and effectively rather than as a difficult and unpredictable obstacle in the way of necessary change. the Penfold Review proposal for accredited experts to be able to grant LBC could easily, if intelligently worked up, produce a detailed and fail-safe proposal for a NLBCO under which an applicant could (if he/she wished) use a genuine and accredited independent expert to devise a no-harm proposal, and then to certify it as no-harm. Most listed building proposals are (or with the expert input could be made) no-harm, so this would have a very wide application. This process would guarantee a real heritage skill input into the proposal and the decision-taking and implementation which is usually absent now, and create a heritage skills demand which is largely absent now. Importantly, this could readily be made both transparent and safe by making every aspect public on the internet via 1APP, with call-in powers for the local authority and an email notification system for anyone else (ie so that anyone worried by this system could sign up for emails and then root out the harmful cases if they could find any).
E&RR Act 2013 Heritage provisions Page 12 of 12 In conclusion, while the CLA does support all of the four proposals in this consultation, we find it very frustrating that much time and effort has been put into changes which will, overall, will make very little difference on the ground, and will do almost nothing to reverse the growing resourcing crisis in the LBC system, a system which is not, and clearly never will be, properly resourced. As above, there are other steps which could readily be taken which would improve listed building protection substantially. CLG and DCMS should pick these up as soon as possible. 15. Do you agree that the compensation procedures which there are powers to prescribe through regulations for National Listed Building Consent Orders should mirror those put in place for Local Listed Building Consent Orders? If no, please briefly explain why. 16. Please provide: Your name Your contact details Jonathan Thompson jonathan.thompson@cla.org.uk Whether your views are personal or represent a body, organisation or authority. In the case of the latter please provide their name and your position within the organisation CLA (Country Land & Business Association) Senior Heritage Adviser Whether you wish your response to remain confidential No January 2014 Prot legislation CLG inc planning