Heritage Protection

Aldbury, Hertfordshire: a Grade II* listed building in a village conservation area; the supposedly 17th-century stocks and whipping post have been individually listed (at Grade II) since 1952. (Photo: CGMS Limited)

England and Wales

Nicholas Doggett

Given all the excitement and debate surrounding the government's recently published White Paper for England and Wales, Heritage Protection for the 21st Century, it seems timely to offer a brief account of the evolution of the current system for protecting the country's historic built environment.

MONUMENTS

There has long been a concern for protecting the remains of the past, from the first stirrings of antiquarian interest in the 16th century following the dissolution of the monasteries, through the achievements of men like John Aubrey and William Stukeley in the 17th and 18th centuries, to the archaeological work carried out in the 19th and early 20th centuries, much of which was by amateurs equally at home in excavating a Bronze Age round barrow or establishing the phases of construction of a medieval parish church.

This concern expressed itself in the writing of several notable figures in the Victorian period, including John Ruskin and William Morris. Official recognition followed in the Ancient Monuments Protection Act 1882, a piece of legislation now so venerated that it might be considered almost on a par with the 70 or so mainly prehistoric monuments it was intended to protect.

Further versions of this act, the latest of which is the Ancient Monuments and Archaeological Areas Act 1979, form the basis for the protection and management of archaeological sites and monuments to this day. There are currently approximately 18,300 scheduled monuments in England and Wales.

LISTED BUILDINGS

The concept of 'listing' buildings appeared rather later than 'scheduling' monuments (although for some reason a number of town halls and bridges were protected under ancient monuments legislation in the 1930s). The forerunner, which was hurriedly compiled during the Second World War, was a list of buildings considered so important that they should be reconstructed in the event of bomb damage. The Town and Country Planning Act 1947 then formalised the process and the first survey of listed buildings was carried out by the then Ministry of Housing and Local Government in the late 1940s and '50s. This survey, undertaken at a time when petrol rationing was still in force, was found no longer fit for its purpose by the '60s and was superseded by further surveys in the '70s and '80s, which like the original survey sought to identify and protect the best of England's buildings, ancient and modern.

The Accelerated Resurvey of Listed Buildings of the 1980s (launched by the energetic Michael Heseltine following the infamous demolition of the Firestone Factory over a bank holiday weekend in 1980, days before its intended listing) saw the number of listed buildings increase to an estimated total of 500,000 in England today. However, precise data is limited because it is not known how many of the 370,000 list entries in this country include several buildings, such as an entire terrace. One side effect of this resurvey was the re-involvement of archaeologists (the author included) in the study of 'standing buildings'. Since then there have been a number of 'thematic' surveys, including those of hospitals and military sites and, of course, individual 'spot-listing' applications (many of them generated by members of the public) continue to be made.

In Wales, as in England, the original Lists of Buildings of Special Architectural or Historic Interest were drawn up in the 1950s and by the early '80s were considered inadequate. Here the resurvey started later and was only concluded at the end of 2005. The result was an increase in the number of listed buildings from about 9,000 in 1984 to approximately 30,000. For many, this resurvey came too late, resulting in the rash of plastic windows and grim pebbledash renders that have afflicted so many historic buildings in the past 20 years or so. (Those affected include many already listed buildings, where some poorly staffed or uninterested local authorities have seemed unwilling to intervene.) Conversely, a lowering of the importance threshold has led to the statutory protection of some buildings that would not be considered 'listable' in England.

CONSERVATION AREAS AND 'LOCAL' LISTING

The system for protecting historic areas rather than individual buildings or monuments owes its origins to the Civic Amenities Act 1967, which enabled the designation of conservation areas. There are now over 9,000 in England alone. An increasing number of these have been accompanied by conservation area character appraisals and management plans. (Present English Heritage guidance would have it that no new designations should be made without carrying out a proper appraisal first.)

In recent years there has also been a growing tendency for local authorities to compile 'local lists', a tradition stretching back to the inclusion of non-statutorily protected 'Grade III' buildings on the old lists of the 1950s to '70s. However, rightly or wrongly, this confers little meaningful protection on the buildings so identified, at least outside conservation areas. Indeed, it is striking that local lists are often most extensive in areas where the statutory lists are shortest: councils with the most statutorily listed buildings are least likely to draw up and maintain local lists.

In addition to scheduled ancient monuments, large numbers of archaeological sites of 'local' importance are included on Historic Environment Records, which are usually held at county level.

OTHER TYPES OF DESIGNATION

As well as protecting individual buildings and archaeological sites or monuments through listing and scheduling respectively, and safeguarding historic areas (both in town and country) through conservation area designation, the concept of the historic environment has grown in recent years to include historic battlefields, maritime wreck sites and World Heritage Sites. Selected parks and gardens (of all types and periods) are included on registers compiled by English Heritage and Cadw and, while the inclusion of a park or garden on the registers provides no statutory protection in itself, it is recognised that the impact of development on a registered park or garden is a material consideration in planning terms.

PROTECTION

Where buildings are listed, permission known as listed building consent, is needed for works that affect the 'character' of the building as a building of 'special architectural or historic interest'. It should be noted that once a building is listed, the listing extends to the whole building (irrespective of its grading). This means that the interior as well as the exterior is given statutory protection, as are structures attached to the 'principal' building and free-standing structures within the curtilage, provided (in most cases) that they pre-date 1948.

Most works involving structural alteration will require listed building consent, but it is important to realise that some 'repairs' affecting historic fabric will also need consent.

The penalties for carrying out unauthorised work (which is a criminal offence) can be severe, resulting in a fine or imprisonment. Enforcement notices can also be served to rectify the effects of unauthorised works.

In conservation areas, conservation area consent is required for the 'total or substantial' demolition of the great majority of unlisted buildings, while in determining planning applications in or adjoining conservation areas local planning authorities are obliged to pay 'special regard to the desirability of preserving or enhancing the character and appearance of the area'.

Most churches in England and Wales operate their own internal systems of control, and do not have to apply for listed building consent and conservation area consent. This so-called 'ecclesiastical exemption' dates from the 1913 iteration of the Ancient Monuments Act which, following a lively debate in the House of Lords, recognised the Church of England's right to control development through its own legislative system of 'faculty jurisdiction'. The exemption was extended to non-conformist churches, informally at first, then acquiring a legal basis in 1971. Since The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994 the exemption has been limited to the churches and chapels of the Church of England, the Church in Wales, the Roman Catholic Church, Baptist Union Church, Methodist Church and the United Reformed Church. However, external works which materially affect the external appearance of a church (and this need not necessarily be limited to extensions) require planning permission, in which case the impact on the character and setting of the listed building may well be the determining factor.

On a day-to-day basis, the protection of archaeological sites and monuments (at both a local and national level) is carried out through the application of government policy contained in PPG16: Planning and Archaeology (1990). For historic buildings and areas the equivalent in England is PPG15: Planning and the Historic Environment (1994) and in Wales the equivalents are the Welsh Office circulars; 60/96 Planning and the Historic Environment: Archaeology and 61/96 Planning and the Historic Environment: Historic Buildings and Conservation Areas.

The English PPGs and Welsh circulars in effect explain how the relevant acts should be applied (the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979 respectively). However, the hierarchy has changed slightly in Wales since devolution, and the key policies of the Welsh Assembly government are now given in Planning Policy Wales (2002) which includes a 10-page section of particular importance, 'Conserving the Historic Environment'. The circulars remain in use despite preceding this policy document, and are referred to in it, because they provide more detailed guidance.

Local plan policy and local development frameworks of the local authority also play an integral part in the process, particularly at appeal.

Most district councils in England now have conservation officers, and many have teams of three or four. Archaeological advice is still usually provided at county level. In unitary authorities (which combine the functions of county and district councils) there are often combined heritage teams. The degree of staff coverage is greater in England than in Wales.

At a national level, further guidance is provided in Wales by Cadw and by English Heritage (EH) in England. Taking England first, EH is a statutory consultee on all listed building consent applications affecting Grade I and II* listed buildings, as well as on all applications affecting the 'total' or 'substantial' demolition of those in Grade II. Local authorities must also consult EH on all planning applications affecting the setting of Grade I and II* listed buildings, and on certain forms of development in conservation areas (see DCMS Circular 01/2001). However, unlike LBC applications on which English Heritage is consulted, in most cases these can be determined locally.

In Wales, Cadw largely fills the role occupied by English Heritage in England, although it has the ability to 'call in' any listed building consent application, whatever the grade of the building, whether or not any form of demolition is involved. However, Cadw is increasingly willing to relinquish this power in those local authority areas where historic building control is well managed.

The national amenity societies, which comprise the Ancient Monuments Society, the Council for British Archaeology, the Society for the Protection of Ancient Buildings, the Georgian Group, the Victorian Society and the 20th Century Society, are all statutory consultees on applications involving even the partial demolition of a listed building (whatever its grade), a remit that also extends to Wales (see DCMS Circular 01/2005). Likewise, the Garden History Society must be consulted on any planning application affecting a registered park or garden in either country.

Finally, brief mention must be made of the White Paper, which in the spirit of a system that EH's chief executive Simon Thurley has said should be 'collaborative and collusive rather than adversarial and confrontational' has three main themes at its heart. These are a 'unified approach to the historic environment' (including a single system of 'registering' to replace listing and scheduling), 'maximising opportunities for inclusion and involvement' and 'placing the historic environment at the heart of the planning system'.

At first sight these well-meaning words seem entirely typical of the current government's 'reforming' approach to the historic environment and to planning in general, but simultaneously one is left wondering whether much is changing at all and if in fact the wheel has simply turned full circle.

Cape Hill, Smethwick, West Midlands: a proposal to include this street in a conservation area could encourage much needed improvements.

This is because, although the whole concept of what constitutes the 'historic environment' has changed beyond recognition since 1882, as have our cultural aspirations (and the language used to express them), one of the principal aims of the White Paper reforms is to bring archaeology and historic buildings (procedurally, largely dealt with separately since the time of the 1947 act) back under the same umbrella.

Does this mean that, albeit unwittingly, the likes of Ruth Kelly and Tessa Jowell have more in common with the eclectic antiquarian tastes and pursuits of Victorian parsons and other gentlemen amateur archaeologists than they might imagine?

Scotland

Stuart Eydmann

Hay's Dock, Lerwick, Shetland; a category B-listed historic dock and boat store which has recently been restored by Groves Raines Architects, Edinburgh

The heritage protection and control system in Scotland closely parallels that in England and Wales but there are some differences and, over time, there is likely to be further divergence.

MONUMENTS

As in England and Wales, the basis for the protection and management of Scotland's 8,000 or so scheduled ancient monuments is the Ancient Monuments and Archaeological Areas Act 1979, which places a duty on the Scottish Ministers to compile, maintain and publish a schedule of such items. The process of scheduling and control of works affecting scheduled monuments is undertaken on behalf of the Scottish Ministers by Historic Scotland. Scheduled monuments are always of 'national importance' and the criteria and guidance for their selection as such have been published in Scottish Historic Environment Policy 2 - Scheduling: protecting Scotland's nationally important monuments.

LISTED BUILDINGS

The current law providing for the listing of buildings and their protection is the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. There are around 47,000 listed buildings in Scotland, although it should be noted that the national preference for tenement living means that there are, in fact, many more affected properties.

Listing is undertaken by Historic Scotland on behalf of the Scottish Ministers in accordance with criteria which have evolved over time (and are to be formalised in a forthcoming Scottish Historic Environment Policy document). All listed buildings are assigned to one of three categories according to their relative importance: Category A, Category B or Category C(s).

The concept of the 'local list' has never found favour with Scottish local authorities, although some conservation officers may maintain informal schedules of potentially listable properties for possible action under Building Preservation Notice procedures or for forwarding to Historic Scotland for future consideration.

Historic Scotland is constantly adding new entries to the list, whether on a one-off basis or through programmed surveys by theme or geographical area.

CONSERVATION AREAS

The 1979 Act also makes provision for the designation of conservation areas, which it defines as being 'areas of special architectural or historic interest, the character of which it is desirable to preserve or enhance'. Local authorities are responsible for the designation of such areas, ideally as part of the local plan process, and for bringing forward policies and initiatives for their preservation and enhancement. Scottish Executive guidance in Planning Advice Note 71 Conservation Area Management assists local authorities in preparing appraisals and management plans for designated and potential areas. There are currently over 600 conservation areas in Scotland.

CONSERVATION GARDENS AND DESIGNED LANDSCAPES

Gardens and designed landscapes can be defined as grounds that are consciously laid out for artistic effect, and usually contain architectural features, trees, shrubs, flowers, water features, lawns, woodland and parkland. Since 1988 Historic Scotland has published an Inventory of such sites, which are recognised as being of national importance. A new Scottish Historic Environment Policy document outlining the Scottish Ministers’ policies for gardens and designed landscapes in respect of their identification and protection, the management of change, and how Historic Scotland will implement these policies is currently in preparation.

CONSERVATION OTHER IMPORTANT SITES AND SOURCES OF INFORMATION

Listed buildings include a wide variety of built structures, from houses to telephone boxes and monuments. The Dugald Stewart Monument shown here (William Playfair, 1831), which is spectacularly sited on the skyline of Calton Hill, Edinburgh, is listed category A.

PROTECTION

Section 2 of the Ancient Monuments and Archaeological Areas Act 1979 provides that the Scottish Ministers' prior written consent must be obtained for any works which alter or have a direct affect on the fabric of a scheduled monument. The necessary scheduled monument consent is administered by Historic Scotland on the Ministers' behalf. Local authorities are also obliged to give due consideration and consult with Historic Scotland where the setting of a scheduled monument is affected by development.

Where buildings are listed, listed building consent, is needed for works that affect the 'character' of the building as a building of 'special architectural or historic interest'. It should be noted that once a building is listed, the listing extends to the whole building (irrespective of its category). This means that the interior as well as the exterior is given statutory protection, as are structures attached to the building and free-standing structures within the curtilage, provided (in most cases) that they pre-date 1 July 1948. Under the terms of the 1997 Act, all places of worship in ecclesiastical use in Scotland are exempt from the need to apply for listed building consent, although there is currently a voluntary arrangement by which certain denominations have agreed to apply for consent for works proposed to the exterior of their churches.

Most works involving structural alteration will require listed building consent, but it is important to realise that some 'repairs' and even some seemingly minor changes affecting historic fabric may also need consent. Applications for listed building consent are made to the planning authority. Local authorities should also give due consideration and follow certain procedures when considering planning applications that affect the setting of listed buildings.

In conservation areas, conservation area consent from the local authority is required for the demolition of buildings. In determining planning applications in or adjoining conservation areas, planning authorities are obliged to give due consideration to the desirability of preserving or enhancing the character and appearance of the area and in many cases special planning policies and additional controls may be in place.

When dealing with planning proposals for works affecting inventoried gardens and designed landscapes, local authorities are obliged to give due consideration to their qualities and setting and to consult with

Callanish stone circle, Isle of Lewis

Historic Scotland and others prior to making a determination.

The penalties for carrying out unauthorised works to scheduled monuments, listed buildings and conservation areas (which may be a criminal offence) can be severe, resulting in a fine or imprisonment. Enforcement notices can also be served to regularise or rectify the effects of unauthorised works.

On a day-to-day basis, the protection of archaeological sites and monuments (at both a local and national level) is carried out through the application of Scottish Executive policy as set out in National Planning Policy Guidance 18 Planning and the Historic Environment. NNPG 18 recognises that social and economic factors contribute significantly to the cultural heritage and help define the character of the historic environment, and in particular it:

The guidance complements NPPG5 Archaeology and Planning, which sets out the role of the planning system in protecting ancient monuments and archaeological sites and landscapes.

Starting with the publication of Scotland's Historic Environment in 2007, these and other relevant ministerial policy documents are being supplemented by a series of Scottish Historic Environment Policy documents, several of which are mentioned above. For most day-to-day casework, local authorities and applicants refer to Historic Scotland's comprehensive Memorandum of Guidance on Listed Buildings and Conservation Areas, which is available on-line or for purchase at a reasonable cost.

Local plan policy and local development frameworks also play an integral part in the process, particularly at appeal, and several Scottish councils have adopted, or are preparing, specific heritage strategies which bring together interests across the authority including museums, local history and planning. The obligation on Scottish authorities to prepare cultural strategies is further stimulating new, joined-up working on heritage matters.

The principal national amenity societies, which contribute to the identification, protection and control of the historic environment, include the Scottish Civic Trust (which also maintains the national Buildings at Risk register), the Architectural Heritage Society of Scotland, the Council for Scottish Archaeology and the Garden History Society in Scotland.

The reforms being followed in England and Wales are not proposed for Scotland, although there are a variety of views as to whether reform of legislation is also required north of the border and what form this might take. A recent report to the then Minister for Tourism, Culture and Sport by the Historic Environment Advisory Council for Scotland (HEACS) made recommendations on the matter. The minister's initial response has been published and both HEACS and Historic Scotland are currently gathering further views from interested parties, including local authorities. The minister's final response is awaited.

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Recommended Reading

In addition to the sources mentioned in the text, the following sources provide additional information on both the historical development and current system of heritage protection:

• J Fawcett (ed), The Future of the Past: Attitudes to Conservation 1174-1974, Thames & Hudson, London, 1976
• W Kennett, Preservation, Temple Smith, London, 1972
• C Mynors, Listed Buildings, Conservation Areas & Monuments, 4th edition, Sweet & Maxwell, London, 2006
• R Sweet, Antiquaries: The Discovery of the Past in Eighteenth-Century Britain, Hambledon and London, London, 2004

Historic Scotland maintains a large catalogue of publications relating to all aspects of conservation (some free) which can be downloaded from:

www.historic-scotland.gov.uk/index/learning/freepublications.htm