DCMS consultation
Improving Listed Building
Consent
August 2012
A submission from The Heritage Alliance
About The Heritage Alliance
· The Heritage Alliance is the largest coalition of heritage interests in England. Together its members own, manage and care for the vast majority of England’s historic environment. Established in 2002 as Heritage Link, the Alliance aims to promote the central role of thenon-Government movement in the heritage sector
· The Heritage Alliance represents nearly 90 Members - major national and regional non-Government organisations, from larger bodies such as the National Trust, to many smaller organisations such as the Association of Building Preservation Trusts – which are in turn supported by over five million members, thousands of local groups and over 450,000 volunteers
· Alliance Members range from specialist advisers, practitioners and managers, volunteers and owners, to national funding bodies and organisations leading regeneration and access projects. Their specialist knowledge and expertise across a huge range of issues – including planning, regeneration and place-making - is a highly valuable national resource, much of which is contributed on a voluntary basis for public benefit
· This submission has been prepared following consultation with Alliance Members through the Spatial Planning Advocacy Group.
A note on the timeframe for this response
1. The Alliance and its members feel most strongly that insufficient time has been given for this consultation. One month is an extremely short period of time in which to co-ordinate the responses of third sector and voluntary
organisations, many of whom meet monthly or quarterly,
and may not have an August meeting because of the holiday
break. A consultation period over the summer break, which
includes the Olympic Games, should be longer not shorter,
because potential respondents are on holiday and/or their
decision-making bodies do not meet in August.
2. The Cabinet Office guidelines state that “timeframes for consultation should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response. The amount of time required will depend on the nature and impact of the proposal (for example, the diversity of interested parties or the complexity of the issue, or even external events), and might typically vary between two and 12 weeks.” The issues that are raised here would have major impacts on the historic environment, and as such The Alliance feels it is wholly inappropriate to propose a consultation period which is at the shorter end of the range available.
3. For umbrella bodies such as the Alliance and several of its membership organisations, the value of our extensive networks in bringing informed comment into national policy making is compromised by this minimal consultation period. Our networks provide a huge resource of knowledge and expertise that help ensure government proposals are workable in practice. We strongly regret this change in consultation practice. We have endeavoured to consult our members as widely as possible in the limited consultation timeframe by (1) asking for their views and (2) seeking their comments on a draft of this response.
Summary of the Alliance’s response
4. The key test for all these proposals must be that protection of the historic environment is not lessened or diminished.
5. The Alliance sees the main risk to this in the use of accredited agents in the consent process. The alternative, which proposes that accredited agents should be permitted in effect, to grant listed building consent, is wholly unacceptable as it circumvents all the checks and balances of the current system. The proposal by which accredited agents prepare a report for a planning committee which will have the standing of an officer report can only work if the standard of the report and the independence of the agent can be assured. How many agents will be willing to prepare a negative report on their clients’ proposals?
6. The success of Option 4 will rely on the robustness of the accreditation systems, which are developed to promote both good standards and to ensure the independence of agents.
The proposals
Option 1: Deemed consent
7. There is a substantial degree of overlap between these proposals and those for the certificate of lawful works of Option 3. If introduced, such a system should only be used for works which do not adversely affect the special interest of a listed building, which in many cases would not require LBC. Any proposals that do affect the special interest, should be subject to processes that require public and other statutory consultation, and the democratic decision of the local authority.
8. In any case, 28 days is too short a period for a local authority to respond, with reduced capacity and resources in most cases, and allowing for staff to take leave.
9. The information requirements will need to be sufficient for the local authority to be able to come to a satisfactory evidence-based decision. If the information provided is inadequate, the local authority may determine that a full LBC application has to be made. This would mean that there is an increase in regulatory burden, rather than a reduction, which is not the intention of these proposals.
Question 1: Do you agree with the proposal to introduce a system of prior notification of works to a listed building, leading to deemed Listed Building Consent if the Local Planning Authority does not request a full application within 28 days? If not, please clearly state your reasons and your views on the approach you consider the Government should take.
We do not agree with this proposal, as prior notification leading to deemed consent circumvents the requirement for consultation. If it is to be used with a low category of cases where the special interest of a building is not affected, such cases will be included in the proposals for certificates of lawful use in Option 3. The Alliance would not support the use of deemed consents for categories of work which affect the special interest of the building.
Question 2: If you are commenting from a Local Planning Authority, are you able to comment on the proportion of your LBC applications which require amendment or the application of non-standard conditions prior to consent? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.
N/A.
Option 2: Class consents
10. Class consents can offer a valuable means of reducing the burden of regulation, although there is a risk that they will be resource-intensive for local authorities to designate..
11. The Alliance believes class consents are more appropriate for use at a local level, where local authorities can determine classes of historic assets that are appropriate.
Question 3: Do you agree with the proposal to introduce a voluntary system of local and national class consents? If not, please clearly state your reasons and your views on the approach you consider the Government should take.
A voluntary system of local class consents may be a valuable tool for local authorities, on the assumption that they will not be implemented without full consultation.
There will be some overlap with the proposals for heritage partnership agreements (HPAs), which are already in the ERR Bill. HPAs require agreement with owners of buildings, which could be difficult to achieve in, for example, rows of listed terraced houses which are all individually owned.
The argument for national class consents is not as persuasive, as it could be seen to be undermining local decision making.
Question 4: If you are commenting from a Local Planning Authority, are you able to comment on the likely applicability of this option within your area, in terms of the kinds of listed building and type of works to which it might be applied, and to the likely resource implications of setting up a local class consent? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.
N/A.
Question 5: Which of the options set out in this consultation to reduce the number of LBC applications for works with limited or justifiable harm to special interest (Options 1 and 2) do you prefer? Please state the reasons for your preference.
Option 2 is preferred, subject to the comments we have made above. Our reasons are as follows:
1. Option 1 provides for no consultation on the proposals
2. Option 1 could in some degree be covered by the Option 3 proposals.
Option 3: Certificates of Lawful works
12. These appear to be helpful additions, and will incorporate an element of the cases that might have come forward for deemed consent approval under Option 1.
13. There has been a growing tendency of local authorities to ask for LBC applications in all cases of works to listed buildings, as there is often no conservation expertise capable of advising owners of listed buildings on whether an application is necessary. This certification process may provide a solution to this issue.
Question 6: Do you agree with the proposal to introduce;
a) a Certificate of Lawful Works to Listed Buildings for proposed works;
Yes, it is a process which should assists owners and developers, but the information requirements will need to strike a balance between being adequate for the task, but not as burdensome as a full LBC application.
b) a Certificate of Lawful Works to Listed Buildings for works already undertaken?
Yes, but not to the extent that it might be seen as an alternative to the consent process in some cases. This will be a useful procedure for owners of properties who are selling and require certification that works carried out – perhaps by previous owners – are lawful.
Question 7: If you are involved in the Listed Building Consent system either in a Local Planning Authority or any other capacity, can you provide further information on the following;
a) possible numbers of LBC applications currently made due to the lack of a formal mechanism for LPAs to confirm whether or not consent is needed;
b) the numbers of informal requests received or made every year concerning the need for LBC;
c) how such queries are handled?
N/A.
Option 4: accredited agents
14. This is arguably the most contentious of the proposals in the consultation, because it could be perceived as diminishing the power and role of the local planning authority in the decision making process.
15. The driver behind this option is the reduction of conservation capacity in many local authorities. This proposal should not be seen as a green light by local authorities to make further reductions. It would also be most unfortunate if applicants were obliged to commission an accredited agent, as this could add to the costs and burden of compliance for smaller owners.
16. The system can only work adequately if the role of accredited agents is restricted to providing advice. The Alliance regards the role proposed in Question 11 of accredited agents being able to certify LBC directly as unacceptable.
17. This proposal can only work satisfactorily if the accreditation standards are rigorous, including proper training and monitoring. The independent and unbiased judgement of the accredited agent must be assured.
Question 8: Do you agree with the proposal to introduce a system whereby accredited independent agents provide expert reports on LBC applications directly to the LPA? If you are involved in the Listed Building Consent system either in a Local Planning Authority or any the capacity of an independent consultant, we will be particularly interested in your views on the likely take-up of this option. If you do not agree with it, please clearly state your reasons and your views on the approach you consider the Government should take.
Yes, but subject to strong safeguards for local democracy and the standards and independence of the accredited agents.
The system should encourage the accredited agents to discuss schemes with the local authority planning and conservation staff as the schemes are developed, to avoid potential confrontation at a later stage as the proposal goes for decision.
The professional liabilities of the accredited agent need to be considered, as there will be legal impacts in where the duty of care lies, and the position of the agent in any legal proceedings, including planning appeals.
Question 9: If you are commenting from a one of the professional institutes listed, are you able to comment on the likely impact on your institute of establishing, monitoring and administering such an accreditation system to support this option? If you are able to supply supporting information, please set it out clearly, or indicate where it can easily be accessed.
N/A.
Question 10: How should the existing heritage accreditation scheme be modified or replaced to accommodate this proposal? What professional standards and enforcement would be needed to cope with the potential conflict of interest, and should agents’ scope be constrained through national government?
The existing conservation accreditation schemes operated by the architectural, archaeological, surveying and engineering professionals are designed to accredit suitable professionals for running conservation contracts. These new proposals require a different skill set, and different accreditation schemes will be required. However, the existing schemes have the processes and procedures in place for running conservation accreditation, so it is possible that they may in interested in operating a new scheme. Other professional bodies with planning and conservation skills may also be interested in operating schemes for their members.
Professional standards will need to be of the highest order. This may be achieved by English Heritage having oversight of the schemes in the same way as they (and the other national heritage bodies in other parts of the UK) have for the existing conservation accreditation schemes. Scheme members should be subject to regular re-accreditation.
Question 11: Should the proposal for advice be extended further, as some stakeholders have suggested, for example allowing accredited agents to certify LBC directly themselves?
No, this is unacceptable.
Reform of enforcement powers for buildings at risk
Question 12: If you are commenting from an authority which is able to take action under Enforcement and Compulsory Purchase powers, can you give any examples of where you have done so, or can you comment on the reasons why you have chosen not to?