[Editor's note (18/12/2009): the following article was published in Summer 2008. Despite strong cross-party support, the Heritage Protection Bill has since been shelved, ostensibly to make room in the parliamentary legislative programme for measures to deal with the credit crunch.]

The Heritage Protection Bill
Fundamental reform for England and Wales?

Roger Mascall

Bentley Priory, Stanmore, Middlesex: future inclusion of heritage assets such as this Grade II* listed building and surrounding Grade II historic park and garden would be as ‘heritage structures’ and ‘heritage open spaces’ on the register maintained by English Heritage in England.

The Heritage Protection Bill for England and Wales was published in draft on April 2nd and launched with this accompanying sound bite from Culture Secretary Andy Burnham: ‘Heritage protection is as important as anything else we do in this department. But nobody can sit in an office in London and decide what is heritage or not. Local
communities have strong feelings about their own heritage and it is important that those voices are heard.’(1)

However, the draft bill, a culmination of proposals aired in the 2004 Green Paper Review of Heritage Protection: The Way Forward and the recent White Paper Heritage Protection for the 21st Century, remains a work in progress.

This is not surprising given the ground that the proposed reform now ambitiously seeks to cover. The drafting hands of two departments, the DCMS for protection and the DCLG for control, are apparent, and this has resulted in some clunky legislative drafting. Some new terms such as ‘registered heritage structures’ (in place of listed buildings or ancient monuments) do not trip easily off the tongue.

As currently drafted, the bill will replace provisions of the Planning (Listed Buildings and Conservation Areas) Act 1990, the Historic Buildings and Ancient Monuments Act 1953, and the Ancient Monument and Archaeological Areas Act 1979 in respect of England and Wales. A considerable raft of supporting secondary legislation will be required to implement many of the clauses.

The bill is promoted under the themes of unification, simplification and greater public say in matters of heritage protection. The extent to which the draft bill addresses the concerns expressed in the Green Paper (that the system is too complex, processes are inaccessible, several consents are needed, and too much is protected) is less clear. While some reforms are aimed at directly addressing criticisms of the system, the opportunity has been taken to address other issues, some of which have considerable significance for those who manage or promote change in the historic environment.

THE HERITAGE REGISTER

A new Heritage Register is proposed for England and Wales to comprise heritage structures (no longer to be known as listed buildings or ancient monuments), heritage open spaces (registered parks and gardens and historic battlefields), and possibly historic landscapes (a category previously undefined in England). World Heritage Sites will also be included, but not conservation areas. English Heritage will have a duty to maintain the registers in England and the Welsh Ministers will bear this responsibility in Wales.

The definition of ‘special interest’, the trigger for heritage protection, will be expanded to denote ‘special historic, archaeological, architectural or artistic interest’. It will be interesting to see whether this leads to wider registration of structures and spaces or further designation of conservation areas now that archaeological and/or artistic interest can be additional reasons for the asset to be considered to be of special interest.

Complex new procedures are proposed for the inclusion, amendment and removal of items from the register, incorporating processes for consultation, interim protection until a decision is made, and appeals. Cumulatively, the timescale for these processes has the potential to be drawn out; however, this is often the price to be paid for more openness and wider consultation. A likely concern is the effect of any such delays on development projects when the asset in question will be protected until a decision is reached and the time period for appeal has lapsed.

A new ‘certificate of no intention to register’ would be introduced for historic structures and, for the first time, for historic open spaces.

HERITAGE ASSET CONSENT

A core proposal of the draft bill is the replacement of listed building consent and scheduled monument consent with a new Heritage Asset Consent (HAC). In addition to works resulting in demolition, consent will now be required for works which result in ‘damage, disturbance, removal, repair, alterations or additions’ to registered heritage structures which affect their special historic, archaeological, architectural or artistic interest. In practice, this will serve to widen the nature and extent of works that will require consent. However, Heritage Asset Consent is not to be extended to include works to registered heritage open spaces.

It is noteworthy that while applications for scheduled monument consent are currently determined by the Secretary of State, DCMS, under these proposals all applications would be determined by local planning authorities. Clearly, authorities will require specialist expertise to determine complex applications currently approved by the Secretary of State, and this raises a resourcing issue during a period of acute financial restraint in most planning authorities.

The concept of class consent is also introduced for registered heritage structures. This is an order issued by the Secretary of State or Welsh Ministers that effectively grants advance consent for certain types of works to certain types of heritage structure.

CONSERVATION AREA CONTROL

The bill makes no reference to conservation areas other than in the accompanying explanatory notes. These, however, make it clear that sections on conservation areas will be included in the bill on introduction, and outline how further controls will be introduced through amendments to the Town and Country Planning (General Permitted Development) Order 1995. The need for conservation area consent for the demolition of buildings in a conservation area would be scrapped and planning permission required instead for both total and partial demolition of buildings in conservation areas. In effect this would reverse case law arising from the 1997 Shimizu case(2) which ruled that consent was only required for total or substantial demolition. Subject to how these provisions are enacted, it seems that we will return to the situation where even quite minor demolition, such as the removal of windows and chimneys – which does so much harm in a conservation area – will require consent. However, the explanatory notes make clear that the existing provisions relating to conservation area consent in the Planning (Listed Buildings and Conservation Areas) Act 1990 will not be replicated. This will presumably mean that unauthorised demolition in a conservation area will not, as now, constitute a criminal offence.

Perhaps the most radical proposal suggests that a section of the bill will contain ‘provisions to reverse the case of South Lakeland District Council versus Secretary of State for the Environment’. In this well-reported case from 1992, it was held that the duty under section 72 of the Planning (Listed Buildings and conservation Areas) Act(3) did not require that development had to enhance the area in question. Preservation, by causing no harm, was sufficient. As the explanatory note clearly states, the bill will ensure that where change (development) does not benefit (or ‘enhance’) the conservation area, it will not be considered ‘appropriate’ and should presumably therefore be refused.

HERITAGE PARTNERSHIP AGREEMENTS AND CLASS CONSENTS

Heritage partnership agreements are essentially development or management agreements for listed buildings. The concept originated in the model developed in 1992 for the Willis (Faber) Building in Ipswich. While they have remained non-statutory, several models have since been developed including, for example, that prepared by the City of London for the residential elements of the Barbican and, more latterly, English Heritage’s pilot projects for diverse assets such as the London Underground and historic bridges in North Cornwall.

Class consent is a tool promoted to give teeth to the heritage partnership agreements by enabling estates, for example, to avoid the need for repeatedly making identical applications for consent where the work concerned is routine.

The clauses in the draft bill finally make provision for statutory agreements between the owners of heritage assets and the local planning authority. All such agreements would be subject to the approval of English Heritage or the Welsh Ministers. Furthermore, relevant work would still require heritage asset consent, even if specified in the agreement, unless covered by a class consent order. This does, in part, address the existing weakness of such agreements by allowing them to include schedules of works that will not require consent. However, the two-tier process, including setting up the agreement itself and the seeking and approval of the necessary class consents, seems unduly
cumbersome.

HISTORIC ENVIRONMENT RECORDS

A specific new duty is imposed on local planning authorities (other than London where English Heritage will assume this duty) to create and maintain a historic environment record (HER). The HER will include details of registrable structures and open spaces which the local planning authority considers to be of special local interest. Such records must be publicly available and only subject to charges relating to the cost of the service.

SPECIAL LOCAL INTEREST

The draft bill introduces the concept of special local interest (whether historic, architectural, archaeological or artistic) where local planning authorities will be required to assess such assets against published principles of selection and to consult the owner(s). In effect, locally important assets will need to be included in the HER, but the draft bill is specific that they would not form part of the national register or require heritage asset consent for works to them. The simple transfer of locally listed buildings for example, to the HER may not be possible without thorough review against the principles of selection.

CONSERVATION AREA DESIGNATIONS

According to the explanatory notes accompanying the draft bill, the basis for designation of a conservation area will be expanded to include special archaeological and artistic interest in addition to the current criteria of special architectural and historic interest. It will be interesting to see what type of area could be deemed to be of sufficient archaeological or artistic interest to warrant designation as a conservation area.

FUNDAMENTAL REFORM?

Clearly the draft bill attempts to do much with varying degrees of success, and some of its more radical proposals have yet to be fleshed out. The re-naming and re-ordering of assets into the register cannot be considered a fundamental reform. However, the proposed widening of the tests of special interest for registration and designation, the widening of the criteria for requiring the new consent, together with the implied re-casting of the statutory duty in conservation areas, could have far reaching effects on the system. It would seem that more assets can be protected for wider reasons; more works to those assets will potentially require consent; and the bar will be raised for what is likely to be considered appropriate in a conservation area. Clearly, PPG15 and PPG16 will need to be radically revised when the new PPS on the historic environment is eventually drafted to reflect these changes.

The degree to which the draft bill has addressed the perceived problems of the existing system is questionable. However, it is clear that significant reform will be achieved in strengthening both the protection and control systems – in ways that were not perhaps expected.

The draft bill has a long path to the statute book and is likely to evolve further in light of scrutiny and consultation. The headline reforms are promoted as:

• A single system for designating historic places, to replace listing, scheduling and registration, to be called the Heritage Register
• Responsibility for designation in England to go from the DCMS to English Heritage
• Introduction of a new system for the ‘interim protection’ of historic assets while they are considered for designation
• Replacing listed building consent and scheduled monument consent with a new Heritage Asset Consent (HAC) and merging conservation area consent with planning permission
• A duty for local authorities to maintain or have access to a Historic Environment Record (HER).

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Recommended Reading

• Draft Heritage Protection Bill, Presented to Parliament by the Secretary of State for Culture Media and Sport, April 2008
• Heritage Protection for the 21st Century, Department for Culture Media and Sport & Welsh Assembly Government, March 2007
• Review of Heritage Protection: The Way Forward, Department for Culture Media and Sport, June 2004
• Protecting Our Historic Environment: Making the System Work Better, Department for Culture Media and Sport, July 2003

Notes
(1) DCMS press release 031/08, 2 April 2008
(2) Shimizu (UK) Limited versus Westminster City Council (1997)
(3) Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires local planning authorities to have regard to the desirability of preserving or enhancing the character or appearance of a conservation area in the carrying out of planning functions.