Heritage Protection in the UK
Jonathan Taylor
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| Original shopfronts make a significant impact on the character of a street, in this case in Durham. Changing it would require planning permission, whether or not in a conservation area, but listing confers a greater degree of protection, particularly over its removal. |
Scheduled monuments and buildings which are listed or in conservation areas are protected by law throughout the United Kingdom, and it is a criminal offence to carry out certain works to them without the necessary consent. As conviction can lead to fines and even imprisonment, it is essential that owners, their contractors and consultants know what can and cannot be done without consent, and when it is necessary to seek specialist advice.
Although the controls protecting the historic environment differ in England, Northern Ireland, Scotland and Wales, the essence of the system remains the same. This article provides a brief guide to the key controls.
Applications for listed building consent (LBC) are generally made to the local planning authority and, if necessary, they are then referred to the statutory authority (Historic England, Northern Ireland’s Department for Infrastructure, Historic Environment Scotland or the Welsh Government’s historic environment service, Cadw).
ECCLESIASTICAL EXEMPTION
Most ecclesiastical buildings which are listed and in use as places of worship are exempt from usual LBC requirements under the ecclesiastical exemption. However, the exemption only applies while the building remains in use as a place of worship: demolition therefore falls under secular listed building control because the building is no longer in use at the point of demolition.
LEGISLATION AND GUIDANCE
Listed buildings are graded according to a variety of factors such as significance, rarity and completeness, with Grade I or (in Scotland) category A being the most important. While the degree of alteration permissible may vary with grade/category, all listed buildings are equally protected in law, inside and out. All three planning acts listed in the table above state that LBC is required for ‘any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest’ (England and Wales, 1990 Act Section 7; Scotland, 2011 Act Article 85; NI, 1997 Act Section 6) – the wording is identical. Repairs may also require consent as even like-for-like repairs often effect a degree of alteration. The criterion for approval is ‘the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses’ (Sections 16 and 14 respectively and Article 85).
Unlisted buildings in conservation areas are protected, but to a lesser extent. All three acts state that a building in a conservation area ‘shall not be demolished’ without the consent of the appropriate authority, and that when considering a proposal the local authority must take into account ‘the desirability of preserving or enhancing the character or appearance’ of the conservation area.
Article 4 directions may be introduced in a conservation area to restrict ‘permitted development rights’ for certain specific alterations. The effect is that certain specified changes (window alterations for example) which would otherwise be permitted by right will require planning permission where visible from the street or other public areas.
In England alterations to primary legislation introduced under the Enterprise and Regulatory Reform Act 2013 mean that planning permission is now required for the demolition of an unlisted building in a conservation area. (In all other home nations the permission required is ‘conservation area consent’.)
DESIGNATION |
WORKS REQUIRING CONSENT |
CONSENT REQUIRED |
Scheduled monument |
All works including demolition, destruction, damage, removal, repairs, alterations, additions etc |
Scheduled monument consent |
Listed building |
All demolition work and alterations which affect its character as a listed building – this includes works to the interior, objects and structures fixed to the building, and objects and structures within its curtilage built before 1948 or, in Northern Ireland, 1973, unless specifically excluded from protection | Listed building consent |
Unlisted building in a conservation area |
Demolition work – generally ‘substantial’, not partial demolition Some external alterations to houses, which elsewhere would be permitted by right, may require consent under an Article 4 direction |
Conservation area consent: planning permission in England Planning permission |
Others |
Planning permission may also be required for: • demolition work affecting an unlisted building in a designated Area of Townscape / Village Character in Northern Ireland |
In Northern Ireland urban areas which exhibit ‘distinct character and intrinsic qualities, often based on their historic built form or layout’, may be designated as areas of townscape character (ATCs). Planning permission is required for the demolition of unlisted buildings in an ATC, and proposals for development are required to ‘respect the appearance and qualities of each townscape area and maintain or enhance their distinctive character’.
Scheduled monuments are protected in England, Scotland and Wales under the Ancient Monuments and Archaeological Areas Act 1979 and in Northern Ireland under the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995. Both acts prohibit all kinds of work to a protected monument unless consent has been granted by the relevant authority. This includes works of demolition or destruction, damage, removal, repairs, flooding and tipping (Section 4 and Article 4 respectively). The use of metal detectors on land relating to a scheduled monument in Britain is also prohibited without written consent of the relevant authority (Section 42), while in Northern Ireland the restriction extends to excavating any land in search of archaeological objects or artefacts of archaeological interest without a licence (Section 41).
LISTED BUILDINGS IN ENGLAND
In England buildings are listed by the Secretary of State (DCMS) on the advice of Historic England. (English Heritage, as the organisation was known, is now a charitable body responsible for historic properties in state care.) The National Heritage List provides details of all designated ‘heritage assets’ and can be found online (www.historicengland.org).
The National Planning Policy Framework (NPPF) replaced all previous government policy on heritage protection in England in March 2012, and is supported by national Planning Practice Guidance on the application of the Planning (Listed Buildings and Conservation Areas) Act 1990. In essence the Act defines the extent of protection, while the NPPF gives government policy on how applications for consent should be dealt with and the information required of the applicant.
Applications for consent (or ‘authorisation’) generally involve photos and drawings showing the location and general layout and more detailed before and after drawings showing the impact of the proposal. A statement of significance is required, although this could range from as little as a paragraph in a covering letter to a substantial document: ‘The level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance’ (NPPF 128).
The use of the word ‘assets’ here relates to the relatively new concept of ‘heritage asset’ which is defined in the NPPF glossary as a ‘building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing).’ A ‘designated’ heritage asset may be a world heritage site, scheduled monument, listed building, protected wreck site, registered park or garden, registered battlefield or conservation area.
PPG Conserving and Enhancing the Historic Environment gives some clarification on key issues, for example where the need to secure a viable use must be balanced against harm to the significance of the asset (paragraphs 15–20).
LISTED BUILDINGS IN NORTHERN IRELAND
Responsibility for listing, scheduling and designating lies with the Department for Communities which took over these functions from Northern Ireland’s former DoE in May 2016. Planning functions were transferred to local authorities and the new Department for Infrastructure in May 2015.
Copies of the lists and schedules can be viewed in the Monuments and Buildings Record in Belfast or in the offices of local authorities. Northern Ireland’s online Buildings Database (www.communities-ni.gov.uk/services/buildings-database) provides address details, but currently list descriptions are only included for two-thirds of them (those resurveyed since 1997).
Unlike the rest of the UK there are four grades of listed buildings, not three. The top nine per cent of listed buildings are graded A or B+. The rest are Grade B1 or B2. Generally, B1 is chosen for buildings that qualify for listing by virtue of a relatively wide selection of attributes, and B2 for those that qualify by virtue of only a few. Buildings in the former Grade C, now known as ‘locally listed’, do not enjoy statutory protection as listed buildings.
Planning Policy Statement 6: Planning, Archaeology and the Built Heritage (PPS6) provides the principal source of guidance on the protection of listed buildings under the Planning (Northern Ireland) Order 1991 and the Planning Act (Northern Ireland) 2011. However, this only has authority until the 11 new district councils in the region publish local development plans with local policies. These policies must comply with the high level policy published in the Strategic Planning Policy Statement. The plans will be published over the next few years.
LBC is required for the demolition of a listed building and for any works of alteration or extension which would affect its character as a building of special architectural or historic interest. As there is ‘a general presumption in favour of the preservation of listed buildings’, applications for LBC must be supported by full information to ‘justify the proposal’ and to ‘enable assessment of the likely impact of proposals on the special architectural or historic interest of the building and on its setting’.
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PRIMARY LEGISLATION AND PRINCIPAL MODIFICATIONS |
GOVERNMENT POLICY AND GUIDANCE |
England |
• Planning (Listed Buildings and Conservation Areas) Act 1990 |
• The National Planning Policy Framework • Planning Practice Guidance; Conserving and Enhancing the Historic Environment |
Northern Ireland |
• Planning Act (Northern Ireland) 2011 • The Planning (Listed Buildings) Regulations (Northern Ireland) 2015 |
• The Strategic Planning Policy Statement (SPPS) (2015) • Planning Policy Statement 6 (PPS6): Planning, Archaeology and the Built Heritage (1999) |
Scotland |
• Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 • Historic Environment Scotland Act 2014 • Planning (Listed Building Consent and Conservation Area Consent Procedure) (Scotland) Regulations 2015 |
• Historic Environment Scotland Policy Statement (2016) • Historic Environment Circular 1 • Guidance notes in the Managing Change in the Historic Environment series |
Wales |
• Planning (Listed Buildings and Conservation Areas) Act 1990 • The Historic Environment (Wales) Act 2016 and associated regulations |
• Planning Policy Wales • Government circulars 61/96, 60/96 and 1/98 • Technical advice notes |
The guidance recognises the need for historic buildings to accommodate change and that there is usually room for ‘some degree of thoughtful alteration or extension’. Policy BH8 lists the criteria: a) the essential character of the building and its setting are retained and its features of special interest remain intact and unimpaired, b) the works proposed make use of traditional and/or sympathetic building materials and techniques which match or are in keeping with those found on the building, and c) the architectural details (eg doors, gutters, windows) match or are in keeping with the building.
Apart from the impact on the special architectural or historic interest of the building, the authorities may also take into consideration ‘the extent to which the proposed works would bring substantial benefits for the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment (including other listed buildings)’ (Para 6.5).
LISTED BUILDINGS IN SCOTLAND
Historic Environment Scotland (HES) is the national body responsible for the designation of nationally significant historic environment assets in Scotland, and details of all national designations can be found on the HES portal, portal.historicenvironment.scot.
HES also provides advice on a wide range of historic environment matters within the Scottish planning system. It is the decision-maker in respect of scheduled monuments, and has a statutory role in determining applications affecting the demolition of buildings which are listed or in conservation areas, and the alteration of category A and B listed buildings.
Historic Environment Scotland Policy Statement (2016) guides the operation of decision making in the Scottish planning system, updating and replacing Scottish Historic Environment Policy (2011). Under the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, any work which affects the character of a listed building will require LBC. HESPS gives two examples of work that might not require consent: a like-forlike repair such as pointing a wall; and ‘altering part of a building which does not contribute to the overall special interest’ (HESPS 3.31).
LBC applications must demonstrate an understanding of the importance of the building and those features which contribute to its special interest. ‘In general the more extensive the intervention which is proposed, the more supporting information applications should provide’ (HESPS 3.41).
Proposals which involve the alteration or adaptation of a listed building will usually be accepted where the beneficial use of the building will be sustained or enhanced, provided that its special interest is not adversely affected (HESPS 3.46).
If its special interest is adversely affected, key considerations are: a) the relative importance of the special interest of the building, b) the scale of the impact of the proposals on that special interest, c) whether there are other options which would ensure a continuing beneficial use for the building with less impact on its special interest, and d) whether there are significant benefits for economic growth or the wider community which justify the adverse effects of the proposal (HESPS 3.47).
Historic Environment Circular 1 provides detailed guidance on the processes involved in managing change in the historic environment in Scotland.
Managing Change in the Historic Environment is a series of concise guidance notes published by Historic Environment Scotland to support and expand on the policies outlined in HESPS . For example, the edition on windows provides useful guidance on repairs, alterations and improvements, including when double glazing might be accepted. Others in the series include Accessibility, Battlefields, Boundaries, Demolition, Doorways, Engineering structures, External fixtures, External walls, Extensions, Interiors, Micro-renewables, Roofs, Setting, Shopfronts, and Works on scheduled monuments.
LISTED BUILDINGS IN WALES
Cadw (the word means ‘to keep’ or ‘protect’), is the Welsh Government’s historic environment service and is part of the Welsh Government’s Economy and Infrastructure Department.
GRADE/CATEGORIES (and proportion in each) |
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England |
Grade I (2.5%) |
Grade II* (5.5%) |
Grade II (92%) |
Northern Ireland |
Grade A (2.5%) | Grade B+ (6.5%) | Grades B, B1 & B2 (91%) |
Scotland |
Category A (8%) | Category B (50%) | Category C (42%) |
Wales |
Grade I (2%) | Grade II* (6%) | Grade II (92%) |
Details of national designations (including listed buildings and scheduled monuments) can be found online under ‘Cof Cymru, National Historic Assets of Wales’, or via the Historic Wales portal, www.historicwales.gov.uk.
The nation shares primary legislation with England (Planning (Listed Buildings and Conservation Areas) Act 1990), with some modifications made under the Historic Environment (Wales) Act 2016. The principal government policy and guidance on its application is contained in Chapter 6 of the Welsh Government’s Planning Policy Wales and Circular 61/96 Planning and the Historic Environment.
Although the Historic Environment (Wales) Act 2016 makes important legislative changes, it cannot alone provide Wales with up-to-date and responsive systems for the positive management of change in the historic environment. Cadw is therefore preparing new draft policy, advice and guidance documents in line with the modern conservation philosophy set out in its Conservation Principles document.
Circular 61/96 gives advice on the level of information required to support an application for LBC: applicants ‘must provide the local planning authority with full information to enable it to assess the likely impact of their proposals on the special architectural or historic interest of the building and on its setting’ (Section 69). It explains that ‘achieving a proper balance between the specialist interest of a listed building and proposals for alterations or extensions is demanding and should always be based on specialist expertise’ (Section 97).
Repairs are unlikely to require LBC unless they involve a degree of alteration which would affect the character of the listed building. However, Circular 61/96 points out that ‘Whether proposed works constitute alterations or demolition is a matter of fact and degree which must be determined in each case’ (Section 67).
An appendix to Annex D contains succinct advice on many typical features and details which contribute to the character of historic buildings or which affect their performance. For example, it explains why lime mortars and renders are important and, under roofs, it explains that ‘Details such as swept valleys should always be retained, as should regional construction traditions such as grouted slate roofs of the western coast.’ The result may not deal with every possible detail, but in practice it illustrates the sort of issues that a conservation officer will be looking for. It is to be hoped that Cadw finds room for such practical advice in future guidance too, whether in this form or in the form of Historic Scotland’s Managing Change guidance notes.
Further Information
The online version of this article includes hyperlinks to all legislation and guidance mentioned here – see http://bc-url.com/protection
C Mynors, Changing Churches: A practical guide to the faculty system, Bloomsbury, London 2016
C Mynors, Listed Buildings and Other Heritage Assets (5th edition), Sweet & Maxwell, London, 2015 (revised edition due in 2017)
