Enabling Development

A look at the position post-NPPF

Mark Challis

Residential new-build in the shadow of a historic church  
The price of conservation: a classic example of enabling development 
 

The term ‘enabling development’ is not a statutory one. It generally refers to a state of affairs in which development that would otherwise be considered harmful is considered acceptable because it would facilitate (or ‘enable’) benefits that outweigh that harm. Typically the benefits in question are the generation of funds that will be used to pay for work to be done to a listed building or other heritage asset that is in pressing need of substantial repairs.

Enabling development cases are rarely straightforward and there are a number of reasons for this. First, as a matter of public policy, enabling development should not provide an easy way out for owners of listed buildings (or other heritage assets) who have failed to take reasonable care of them. Nor should enabling development act as a lifeboat to rescue property owners from ill-judged transactions, such as overpaying for a property in the first place. Generally, therefore, enabling development should be seen as a long-term solution of last resort, with proposals coming forward when other solutions have been tried but have failed. This tends to mean that enabling development cases come forward with a certain amount of past history or ‘baggage’.

There is a further difficulty in that, public policy considerations aside, the welfare of the heritage asset in distress is at the heart of enabling development cases. Everyone concerned will be aware that the longer it takes to find a solution, the more the asset will deteriorate and the more money will be needed to repair it. In short, there will be pressure to find a solution even if it is an imperfect one.

The classic enabling development case is one where new houses are proposed in the grounds of a listed building in disrepair, with the owner claiming that this is the only way to fund desperately needed repairs. It may be that the new houses are perfectly acceptable in planning terms in any event. They might have no adverse impact on the setting of the building and be in a location where house-building is perfectly acceptable. That being the case, the new houses will not be ‘enabling development’ in the terms of this article. However, if, for example, the property is in the green belt then new housing would not normally be allowed and the issue becomes one of whether the new houses are nonetheless acceptable as ‘enabling development’.

Until the publication of PPS5 (Planning Policy Statement 5: Planning for the Historic Environment) in March 2010, which contained a single policy on enabling development (Policy HE11), there was no government policy on the subject. English Heritage (EH), however, issued its own enabling development policy in 1999. It reissued it in 2001 together with a detailed practical guide that drew heavily on planning appeal decisions involving enabling development proposals, many of which are quoted from the guidance. The 2001 policy and guidance were both updated in 2008 and reissued as Enabling Development and the Conservation of Significant Places, not least to bring them into line with EH’s thinking on the historic environment in Conservation Principles issued earlier that year. The 2008 guidance still stands for now (as a revision is in prospect) as it was broadly but not wholly consistent with PPS5, which has in any event been superseded by paragraph 140 of the National Planning Policy Framework (NPPF) which says, simply, that:

Local planning authorities should assess whether the benefits of a proposal for enabling development, which would otherwise conflict with planning policies but which would secure the future conservation of a heritage asset, outweigh the disbenefits of departing from those policies.

The NPPF policy is expressed as a straightforward balancing exercise: will the proposal do more harm than good? In reality many local planning authorities have approached enabling development cases in this way for years. The EH policy is, however, more sophisticated but also more stringent than the one-sentence NPPF policy and also the now superseded policy in PPS5. The EH policy requires enabling development proposals to meet eight criteria if they are to be considered acceptable. It is thereby more than a ‘good v harm’ balancing exercise and more proposals are likely to fail the test than under the NPPF, particularly as the first EH criterion is that the proposal will not materially harm the heritage values of the place or its setting.

However, as is the case with much of the NPPF, the simple expression of the policy position belies the complexity of the issues in practice. It is for this reason that EH’s practical guide will continue to have a useful role to play, as enabling development cases throw up some thorny issues, some of which are discussed briefly below.

  The neoclassical facade of the camellia house at New Wardour
  Development enabled the conservation of this camellia house at New Wardour, Wiltshire (Photo: Jonathan Taylor)

First, how much enabling development is appropriate? What if on an NPPF 'good v harm' analysis 30 new houses in the grounds would do more good than harm, but then so would 20? To meet the EH criteria the enabling development must be demonstrated to be the minimum necessary to secure the future of the asset. An understanding of the financial position is therefore necessary to get to the bottom of the conservation deficit (the amount by which the cost of repairs exceeds the market value of the asset when repaired) and how much money is likely to be generated by the scheme. Although this can never be an exact science, the EH guide provides a useful overview of the sorts of costs involved, the extent to which they can legitimately be included in the calculations and how to factor in profit margins and site value. It urges local authorities to take professional advice on the financial aspects if they do not have an in-house capability and points out that developers who seek permission for enabling development will need to be open about the financial situation.

Second, it is essential that there is a means by which the benefits claimed for an enabling development materialise. This will involve the use of planning conditions and usually a section 106 agreement as well. Phasing will often be an important factor, with the section 106 agreement stipulating not only the works to be done to the heritage asset but the sequence in which they are done alongside the new development. The situation that the local planning authority will want to avoid is one in which the new development proceeds too far ahead of the repair work, with enforcement of the repair work obligations being difficult, particularly if the developer has run out of money. Accordingly, restrictions upon the occupation or construction of the new development are often appropriate, as is the requirement to enter into a bond that can be called upon by the local authority if all else fails. In these cases there is no one-size-fits-all section 106 agreement, but the EH guidance identifies the main issues to take into account.

Third, would the enabling development be needed at all in the hands of another owner? To deal with this point, the EH guide, when re-issued in 2008, contained a new section on ‘market testing’ and how it ought to be done. The market testing issue is consistent with the notion that enabling development generally ought to be a solution of last resort and that a new owner might be willing to approach the conservation deficit issue from a different perspective without the need for enabling development. It is also a means of testing the existence of a conservation deficit, as this would ordinarily deter buyers.

Fourth, what to do about the long term? This is a particularly difficult issue because of the inherent uncertainty over what may happen in years or decades to come, but the starting point is that enabling development ought to be a one-off long-term solution, even though there can be no generally applicable definition of the ‘long term’. There are, therefore, difficult judgements to be made about the extent of repair work that ought to be financed by enabling development, bearing in mind that the greater the extent of those repairs, the greater the amount of (otherwise harmful) enabling development that will be required to produce the necessary funds. That said, the local authority will want to avoid a situation in which, having permitted enabling development, in a few years time the developer or a future owner comes back and asks for more (referred to in the EH guidance as a ‘second bite of the cherry’). Ideally, as well as permitting the appropriate amount of development, there will be arrangements in place, probably in the section 106 agreement, whereby the ongoing management of the asset may be assured. This also implies that the new development will not become wholly separated from the heritage asset in ownership terms, a concern described as ‘fragmentation’ in the EH guidance, that term also being used in Policy HE11 of PPS5.

The historic environment has rightly been accorded a high priority in the planning system from the start and that priority is maintained by the NPPF. Although enabling development is dealt with in short order in the NPPF, it retains the thrust of the PPS policy it replaced. In a difficult economic climate, enabling development is potentially a solution in an increasing number of situations. Not least for the reasons mentioned in this article, however, it remains a solution that is not for the faint hearted.

 

 

 

The Building Conservation Directory, 2013

Author

MARK CHALLIS is a partner at Bircham Dyson Bell LLP. He was a member of the drafting group assembled by English Heritage to write the 2001 and 2008 guidance mentioned in this article.

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