Conservation Planning

Alexandra Fairclough and Jonathan Taylor

buildings in the UK has evolved over the past 50 years as a reactive and a preventative system of control. It is preventative in that most development requires permission from the local planning authority by law, and the application procedure leads to unacceptable applications either being refused or being modified and improved. It is reactive in that breaches of planning can be put right by enforcement procedures and specific cases can result in criminal prosecution.

Underpinning this system is a public law mechanism which is embodied in a variety of statutes, regulations, rules, policy guidance notes, circulars and technical advice notes, and which is implemented at a local level by public authorities vested with powers to control the development and use of land. Local authorities achieve this through three different elements; the development plan, the control of development and a centralised system of administration.

An application may be decided by a planning committee or delegated to the planning officer if the case is not controversial. In deciding whether or not to approve a planning application, the local authority is required to take into account its own policies within the development plan and 'any material considerations' - that is to say, anything else which is particularly relevant. This allows the authority wide discretionary powers on the basis that the development plan is not the only consideration in planning applications.

The development plan sets out the policies of the local authority rather than prescriptive rules. The plan is reviewed periodically to take into account national policy and local requirements. There are also areas of specialised heritage protection and control within the planning arena. These include listed buildings, conservation areas, trees, churches and ancient monuments.

Planning control is rarely proactive although recent governmental policy attempts to promote development (urban regeneration for example). The planning system is more negative than positive and sometimes unaccountable, in that the decision-making process is influenced by Government policy rather than strict rules or guidance.

This system is political in so far as decisions are made by a committee of local politicians. Thus political accountability is substituted for legal accountability and issues of policy are negotiated between local politicians, national politicians and the Executive arm of the Government - that is the Houses of Parliament and, specifically, the Secretaries of State. Thus there exists a system of central supervision based on pragmatism rather than legal principle.

Conservation
The impact of planning law on the historic environment is acute. The existence of a separate planning act is indicative of the importance of historic buildings and structures to our national identity and cultural heritage. In England and Wales this is the Planning (Listed Buildings and Conservation Areas) Act 1990. In Scotland it is the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The provisions of these two acts can work independently and in parallel with the main planning act, the Town and Country Planning Act 1990. There are also many associated regulations, circulars and guidance notes.

In England, Planning Policy Guidance Note 15: Planning and the Historic Environment (PPG15) is particularly useful for both the conservation practitioner and the historic building owner. Equivalent documents for Wales are the Welsh Office Circulars 61/96 and 1/98 (their full titles are given at the bottom of the page) and for Scotland it is the Memorandum of Guidance on Listed Buildings and Conservation Areas. These regulations, circulars and planning policy guidance notes are produced by central government. They are recognised as important sources of government policy which assist local planning authorities in their decision-making, and are used to interpret planning law.

A wide variety of information has to be assimilated by an applicant or the professional when proposing to alter, extend or demolish a listed building, and owners of historic buildings are best guided by the conservation officer, whose experience and expert knowledge can be invaluable. If possible, establish a relationship with the conservation officer prior to the submission of an application and submit as much information as you can at this stage. It is often necessary to include a full and detailed justification for the proposals to assist in the decision-making process.

Often there will be issues and proposals that will be contrary to both the guidance given by the conservation officer and in PPG15 or its equivalent Circular or Memorandum. If an applicant prefers to proceed against the advice of the conservation officer, then the alternative is to lodge an appeal against the subsequent refusal with either the Planning Inspectorate if the property is in England or Wales, or with the Scottish Official Inquiry Reporters Office if in Scotland.

The appeal system enables an aggrieved applicant or those subject to enforcement, to appeal the decision of the planning authority. A planning inspector is generally the arbiter of such adversity, although government ministers are the final decision-makers.

Until recently the rights of the property owner were not protected by any constitutional rules. The incorporation of the Human Rights Act 1998 may lead to change but this will be on a case by case basis and will be inevitably slow. The impact of the Act is discussed further in a further article by Alexandra Fairclough.

Listed Buildings
Some 440,000 buildings are listed on the statutory register of buildings of 'special architectural or historic interest' in Britain. As some list entries include several buildings at the same address, the total number of listed buildings is larger - perhaps 600,000 - amounting to almost two per cent of our total housing stock. The listings are graded according to the architectural or historic importance of each building, Grade I being the most important in England and Wales and Grade A in Scotland. The grade generally reflects the age and rarity of the building, but many other factors are also taken into account, such as technological innovation, townscape value or connection with a particular historical event.

All alterations and extensions to a listed building require listed building consent if they 'affect its character as a building of special architectural or historic interest', irrespective of its grade (although some churches are exempt - see below). This includes alterations inside the building and may also include many aspects of repair. The only real difference between grades is that whilst listed building consent applications are considered by the local authority alone, those affecting buildings of the most important grades (I, II* and A) are also considered by either Cadw, English Heritage or Historic Scotland. In Wales, all applications to which the local planning authority are minded to grant consent are notified to the National Assembly of Wales (ie Cadw); unless the works affect the interior only of a Grade II listed building which has not been grant aided or is not subject to an undecided grant aid application, under Section 4 of the Historic Buildings and Ancient Monuments Act 1953.

Listed building consent is also required for alterations to any object or structure which lies within the grounds or 'curtilage' of a listed building and which was constructed before 1 July 1948. This may be taken to include garden walls, sundials, dovecotes and other such objects and structures, as well as buildings which are ancillary to the principal building.

Ecclesiastical Exemption
Until recently all churches and chapels in England, Northern Ireland and Wales were exempt from listed building and conservation area controls. The exemption remains intact in Northern Ireland, but in England and Wales, 'ecclesiastical exemption' as it is known, has been restricted to churches and chapels of the six denominations deemed to be operating an acceptable internal system of control, provided that the building remains in use as a place of worship. These include the buildings of the Church of England, the Church in Wales, the Methodists, the Roman Catholics, the United Reformed and those Baptist churches where the Baptist Union acts in the capacity of trustee.

Ecclesiastical exemption in Scotland, which was limited to listed building consent only, was also reassessed and a pilot scheme was introduced on 1 January 1999 for a trial period of three years. Under this scheme a congregation wishing to carry out works to the exterior of a listed church building is required to submit details of the proposal to the planning authority and Historic Scotland and obtain their agreement before undertaking the work. For the moment works to the interior of a listed church building remain exempt.

Conservation Areas
There are almost 10,000 conservation areas in the UK, designated by the local authorities. In these areas the demolition of a building requires conservation area consent. Unauthorised demolition is a criminal offence.

The meaning of 'demolition', at least as far as Great Britain is concerned, was clarified by the case of Shimizu v Westminster City Council in 1997. The result was that the 'demolition' of part of an unlisted building, such as a chimney stack or a front porch, is now considered as an alteration, not demolition, and so does not require conservation area consent. However, alterations such as this may require planning permission.

The alterations which require planning permission are complicated by 'permitted development rights', the effect of which is that certain small extensions and other alterations are granted planning permission automatically where they affect a house which is occupied as a 'single family dwelling' - that is to say, it is lived in by one family only, not subdivided to form flats. Within a conservation area these 'permitted development' rights are more limited, and exclude for example certain types of cladding, the insertion of dormer windows and satellite dishes, all of which therefore require planning applications. In Scotland, changes in a roof covering are also excluded.

Permitted development rights for a prescribed range of developments may also be withdrawn by the local authority under an Article 4 direction. This enables the local authority to control certain types of alteration which do so much damage to the character of conservation areas, such as the alteration or removal of doors and windows.

No separate application is required where an unlisted building lies within a conservation area, but the policies of the local authority should be carefully noted as local authorities are required to pay special attention to 'the desirability of preserving or enhancing the character or appearance of that area' when considering an application for planning permission.

Conservation Areas
Alterations to parks and gardens generally do not require statutory consent unless they involve development work requiring a planning application or affecting a tree covered by a tree preservation order (TPO). However, local planning authorities are encouraged to include policies in their development plans for the protection of designed landscapes and to protect 'registered' historic parks and gardens. In England and Wales being 'registered' means inclusion on the Register of Parks and Gardens of special historic interest. In Scotland the register is called the Inventory of Gardens and Designed Landscapes.

There are also statutory procedures for consultation where development is likely to affect a registered historic park or garden. The consultation varies slightly between the regions of the UK.

Where an application affects a park or garden, Historic Scotland can request the Planning Division of the Scottish Office to call in the application under a 'notification directive' before the planning authority issues its decision.

The consent of the local planning authority is required to cut down, top, or lop a tree which is protected by a TPO. The principal exception to this is where a tree is dying, dead or dangerous, in which case notice should be given to the local authority before carrying out the work. Within a conservation area anyone proposing to cut down, top or lop a tree is also required to give the local planning authority six weeks notice, giving the authority the opportunity to consider whether a TPO should be made.

Futher Information
General historic building issues

• Mynors, Charles; Listed Buildings, Conservation Areas and Monuments, Sweet and Maxwell, 3rd edition, 1999
• England: Planning Policy Guidance Note 15: Planning and the Historic Environment
• Wales: 61/96 Planning and the Historic Environment: Historic Buildings and Conservation Areas 1/98 Planning and the Historic Environment: Directions by the Secretary of State for Wales
• Scotland: Memorandum of Guidance on Listed Buildings and Conservation Areas